This agreement (the "Agreement") is a legal agreement between the Customer (as defined below) and Receptive Software Limited (a company registered in England and Wales with company number 09505713) whose office address is Bedford House, Lion Works, Mowbray Street, Sheffield S3 8EN ("Receptive").
The Receptive Services provide a feature request management system that helps software companies make data-driven product decisions.
Receptive permits use of the Receptive Services and Documentation by the Customer on the basis of this Agreement. By checking the box confirming acceptance of this Agreement, the Customer agrees to be bound by the terms of this Agreement.
Receptive and the Customer now agree as follows:
In this Agreement, the following terms will have the meanings assigned to them below:
"Account" an instance of the Receptive Services made exclusively available to the Customer;
"Customer Data" means any and all data, Personal Data, information and content which are i) uploaded, stored or installed by the Customer onto the Receptive Services or ii) created, realised or developed by the Customer while using the Receptive Services;
“Data Protection Legislation” means the Data Protection Act 1998 (as amended) and the General Data Protection Regulation (EU 2016/679) in force on 25 May 2018 as amended from time to time;
"Data Protection Particulars" means the information set out at Schedule 1;
"Data Subject" has the meaning set out in the Data Protection Legislation;
"Documentation" means the documents made available to the Customer by Receptive online via https://www.receptive.io and https://help.receptive.io or such other web address notified by Receptive to the Customer from time to time which sets out a description of Receptive Services and the User instructions for the Receptive Services;
"Effective Date" means the date on which the Customer checks the box available online via https://www.receptive.io confirming its acceptance of the terms of this Agreement;
"Information" means any and all documentation, materials, software, code and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, pricing, transactions, software, suppliers or methods of one Party and disclosed to or otherwise obtained by the other Party in connection with this Agreement;
"Intellectual Property" means any and all intellectual property rights including patents, trademarks, design rights, copyright, rights in databases, domain names, topography rights, and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with any and all goodwill relating or attached thereto, the right to apply for registration of and/or register such rights and all extensions and renewals thereof;
"Receptive Services" the services provided by Receptive to the Customer under this Agreement using the Software, as more particularly described in the Documentation;
"Normal Business Hours" means 9:00am to 6:00pm, GMT on any Working Day;
"Parties" means the Customer and Receptive and "Party" shall be construed accordingly;
"Personal Data" has the meaning set out in the Data Protection Legislation;
"Personal Data Breach" has the meaning set out in the Data Protection Legislation;
"Personnel" means all staff engaged by Receptive in connection with this Agreement, including employees, consultants, contractors and permitted agents;
"Processing" has the meaning set out in the Data Protection Legislation (and "Process" and "Processed" when used in relation to the Processing of Personal Data, shall be construed accordingly);
"Processor" has the meaning set out in the Data Protection Legislation;
"Security Requirements" means the requirements regarding the security of the Personal Data as set out in the Data Protection Legislation (including, in particular, the seventh data protection principle, as applicable);
"Service Charges" the subscription fees payable by the Customer for the User Subscriptions, as detailed online via https://www.receptive.io/pricing.html;
"Software" means Receptive's software provided as part of Receptive Services, including any updates and modifications made available from time to time by Receptive;
"Support Services" means the support services in relation to Receptive Services provided by Receptive to the Customer free of charge in accordance with the Support Services Policy;
"Support Services Policy" means Receptive's policy for providing Support Services in relation to the Receptive Services as made available at https://www.receptive.io/policies/support.html or such other website address as may be notified to the Customer from time to time;
"Term" means the term of this Agreement as detailed in clause 13.1;
"Users" means the employees and customers of the Customer who are authorised to use the Receptive Services;
"User Subscriptions" means the user subscriptions purchased by the Customer which entitle Users to access and use the Receptive Services and the Documentation in accordance with this Agreement;
"Working Day" means any day falling on or between Monday to Friday, excluding all public and bank holidays in England and Wales; 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 devices.
Clause headings shall not affect the interpretation of this Agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders.
The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context and reference to the whole includes reference to part).
Licence to use Receptive Services
In consideration of the payment of the Service Charges by the Customer, and subject to the restrictions and Customer obligations set out in this Agreement, Receptive hereby grants to the Customer a non-exclusive, non-transferable right to permit the Users to use the Receptive Services and the Documentation commencing on the Effective Date during the Term solely for the Customer's internal business operations in accordance with the terms of this Agreement.
In relation to the Users, the Customer undertakes that:
the maximum number of Users that it authorises to access and use the Receptive Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
it will not allow or suffer any User Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Receptive Services and/or Documentation;
it shall permit Receptive to audit the Receptive Services in order to establish the Users. Such audit may be conducted no more than once per quarter 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;
if any of the audits referred to in clause 2.2(c) reveal that any individual(s) who are not Users have been using the Receptive Services, then without prejudice to Receptive's other rights, the Customer shall promptly ensure that such individual(s) stop using the Receptive Services; and
if any of the audits referred to in clause 2.2(c) reveal that the Customer has underpaid Service Charges to Receptive, then without prejudice to Receptive's other rights, the Customer shall pay to Receptive an amount equal to such underpayment as calculated in accordance with Receptive's then current price list within 10 Working Days of the date of the relevant audit.
Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, the Customer shall not nor permit others to, and shall procure the Users shall not:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
rent, lease, sublicense, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis;
translate, reverse engineer, decompile, disassemble, unbundle, modify or create derivative works based on the Software, except as expressly permitted by law;
vary, delete or obscure any notices of proprietary rights or any product identification or restrictions in the Software; or
access all or any part of the Receptive Services and/or Documentation in order to build a product or service which competes with the Receptive Services and/or the Documentation.
The Customer undertakes to prevent any unauthorised access to, or use of, the Receptive Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Receptive.
The Customer shall not, and shall procure the Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Receptive Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property, and Receptive 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.
The integrity of the Software is protected by technical protection measures so that the Intellectual Property rights in the Software are not misappropriated. The Customer must not attempt in any way to remove or circumvent such technical protection measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
All rights that are not expressly or specifically granted in this Agreement to the Customer are reserved to Receptive.
Additional User Subscriptions
Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during the Term, purchase additional User Subscriptions and Receptive shall grant access to the Receptive Services and the Documentation to such additional Users in accordance with the provisions of this Agreement.
If the Customer wishes to purchase additional User Subscriptions or changes to their package, the Customer shall notify Receptive in writing. Receptive shall evaluate such request and respond to the Customer with approval or rejection of the request.
If Receptive approves the Customer's request to purchase additional User Subscriptions, the Customer shall pay to Receptive the relevant fees for such additional User Subscriptions on the date of purchase and, if such additional User Subscriptions are purchased by the Customer part way through a month, such fees shall be pro-rated for the remainder of that month.
Provision of Receptive Services
Receptive shall use its reasonable endeavours to make the Receptive Services available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 6pm to 7pm UK time;
emergency maintenance. In any such emergency Receptive will put status information on http://status.receptive.io;
unscheduled maintenance performed outside Normal Business Hours, provided that Receptive has used reasonable endeavours to give the Customer at least 1 Normal Business Hour's notice in advance.
Receptive shall be entitled at any time to improve or update the Receptive Services in case of: i) improvements or updates necessary to fix defects, bugs, malfunctioning or errors of the Receptive Services; and/or ii) to cure security vulnerabilities of the Receptive Services; and/or ii) the application of any new laws, regulations acts or orders of the authorities.
Receptive shall not be liable for any failure to provide Receptive Services in accordance with this Agreement to the extent that such failure is caused directly or indirectly by the Customer's negligence or breach of any term of this Agreement.
Receptive will, as part of the Receptive Services and at no additional cost to the Customer, provide the Customer with Receptive's Support Services during Normal Business Hours in accordance with Receptive's Support Services Policy in effect at the time that the Receptive Services are provided. Receptive may amend the Support Services Policy in its sole and absolute discretion from time to time.
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.
Receptive shall, in providing the Receptive Services, comply with its Data Privacy and Security Policy available at https://www.receptive.io/policies/datasecurityprivacy.html or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Receptive in its sole discretion.
In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Receptive to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by Receptive. Receptive 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 Receptive to perform services related to Customer Data maintenance and backup).
The parties acknowledge that in respect of any Personal Data Processed on the Customer's behalf when performing its obligations under this Agreement, Receptive is acting as a Processor appointed by the Customer and the Customer is a Data Controller.
Receptive aims to comply with the Data Protection Legislation in its Processing of the Personal Data required in the performance of the Agreement, and shall use all reasonable endeavours to provide such assistance and/or co-operation as is reasonably necessary or reasonably requested by the Customer to assist the Customer in complying with the Data Protection Legislation.
Each of the Parties acknowledges and agrees that Schedule 1 is an accurate description of the Data Protection Particulars.
Receptive agrees that it will only Process the Personal Data in accordance with the Customer's documented instructions and for the purposes set out in the Agreement.
Receptive shall promptly comply with any request from the Customer to amend, transfer or delete the Personal Data.
At the Customers written request (and cost and expense), Receptive shall provide the Customer with a copy of all Personal Data held by it in the format as reasonably specified by the Customer.
Receptive shall promptly notify the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable as a result of its acts or omissions.
Receptive shall use all reasonable endeavours to keep the Personal Data confidential in accordance with clause 11 of this Agreement.
Receptive agrees that it shall implement and maintain such technical and organisational measures as are required to enable the Personal Data to be Processed in compliance with at least the obligations imposed on the Customer by the Security Requirements.
If requested by the Customer, Receptive will provide such information as is reasonably necessary to enable the Customer to satisfy itself of Receptive's compliance with clause 6.12.
Receptive will allow the Customer, its employees, authorised agents or advisers, upon prior written notice, access to Receptive's written records which in Receptive's reasonable opinion demonstrate compliance with the terms of this clause 6.
Without prejudice to Receptive's obligations with respect to Receptive's Personnel, Receptive shall use reasonable endeavours to:
take reasonable steps to ensure the reliability and integrity of any of Receptive's Personnel who shall have access to the Personal Data;
ensure that only such members of Receptive's Personnel required by it to assist it in fulfilling its obligations under the Agreement shall have access to the Personal Data (and no other member of Receptive's Personnel shall have access to such Personal Data); and
ensure that each member of Receptive's Personnel shall have:
undergone reasonable levels of training in Data Protection Legislation and in the care and handling of Personal Data; and
entered in to appropriate contractually-binding confidentiality undertakings that shall apply to the Personal Data.
Receptive shall only send Personal Data outside the EEA for processing where Receptive has in place a legal agreement with the processor, the effect of which gives the Data Subject the same protection as the Data Protection Legislation.
Receptive shall promptly notify the Customer upon becoming aware of any actual or suspected or 'near miss' Personal Data Breach, and will:
take all reasonable steps (and procure that its sub-contractors take all reasonable steps) to prevent or minimise the effects of the Personal Data Breach;
implement or attempt to procure that its sub-contractors implement measures necessary to restore the security of compromised Personal Data; and
provide the Customer with reasonable co-operation and assistance to make any notifications to the Information Commissioners Office and affected Data Subjects.
Receptive shall notify the Customer following its receipt of any Data Subject Request, and shall:
not disclose any Personal Data in response to any Data Subject Request without the Customer's prior written consent; and
provide the Customer with reasonable co-operation and assistance required by the Customer in relation to any such Data Subject Request.
Receptive will comply with the Customer's reasonable requirements in relation to the Customer's compliance with any Data Subject Request.
The Customer shall co-operate with Receptive in all matters relating to the Receptive Services and appoint a manager in relation to the Receptive Services, who shall have authority to act for the Customer on matters relating to the Receptive Services.
The Customer warrants and agrees that:
it has complied and shall comply with the Data Protection Legislation as a Data Controller;
Receptive is entitled to Process the Personal Data as part of the Receptive Services and such use will comply with the Data Protection Legislation;
it has the right to licence the Processing of the Personal Data to Receptive under the Agreement;
the Processing of the Personal Data by Receptive as part of the Receptive Services will not infringe the Intellectual Property Rights of any third party;
it has obtained the appropriate consent from a Data Subject to allow Receptive to Process the Personal Data as part of the Receptive Services as anticipated by the Agreement;
it is not aware of any circumstances likely to give rise to breach by it of any of the Data Protection Legislation in the future; and
all Personal Data to be Processed by Receptive is necessary, accurate and up-to-date.
If Receptive's performance of any of its obligations under the Agreement is prevented or delayed by the Customer's act, omission or failure to perform any relevant obligation under this Agreement ("Customer Default"):
Receptive shall have the right to suspend performance of the Receptive Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays its performance of any of its obligations;
Receptive shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from its failure or delay to perform any of its obligations as set out in clauses 6.20 to 6.23.
The Customer shall indemnify Receptive and keep Receptive indemnified from and against any and all liabilities, losses, expenses, claims, 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 professional costs and expenses) suffered or incurred by Receptive as a result of the Customer's breach of its obligations as set out in this Agreement.
Receptive undertakes that the Receptive Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Receptive Services contrary to Receptive's instructions, or modification or alteration of Receptive Services by any party other than Receptive or Receptive's duly authorised contractors or agents. If the Receptive Services do not conform with the foregoing undertaking, Receptive will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Receptive:
does not warrant that the Customer's use of the Receptive Services will be uninterrupted or error-free; or that the Receptive Services, the Documentation and/or the information obtained by the Customer through the Receptive Services will meet the Customer's requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Receptive Services and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Receptive warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
The Customer shall:
only use the Receptive Services in accordance with the terms of the Agreement for its own internal purposes;
use the Receptive Services in accordance with Receptive's reasonable instructions and any laws, regulations and licenses which may apply to the Customer's use of the Receptive Services from time to time;
carry out all Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Receptive may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Users use the Receptive Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any User's breach of this Agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Receptive, its contractors and agents to perform their obligations under this Agreement;
ensure that its network and systems comply with the relevant specifications provided by Receptive from time to time and in any event use a supported web browser as defined in the Support Services Policy and maintain a reliable high speed internet connection;
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
provide Receptive with up-to-date information, cooperation and support as Receptive shall reasonably require pursuant to this Agreement.
Charges and Payment
The Customer shall pay the Service Charges to Receptive in accordance with this clause 9.
All amounts and fees stated in this Agreement:
are exclusive of Value Added Tax and any other applicable taxes, duties and assessments which shall be payable by the Customer in the manner prescribed by law;
shall, unless otherwise agreed between the parties, be payable in US dollars; and
are non-cancellable and non-refundable.
The Customer shall on the Effective Date provide to Receptive valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details Receptive may require and, the Customer hereby authorises Receptive to charge such credit card for the Service Charges monthly in advance.
If the Customer fails to make any payment due to Receptive by the due date for payment then, without prejudice to Receptive's other rights and remedies, Receptive may:
charge the Customer interest on the overdue amount at four percent (4%) above the official interest rate of the Bank of England. Such interest shall accrue on a daily basis from the due date of payment until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest immediately on demand by Receptive; and/or
without liability to the Customer, suspend access to the User passwords, the Account and access to all or part of the Receptive Services and/or any other services provided under on in connection with this Agreement (or any part of them) while the amounts remain unpaid.
Receptive shall have the right to vary the Service Charges from time to time on no less than thirty (30) days' written notice to the Customer, provided that if the Customer does not accept the changes to the Service Charges the Customer may terminate this Agreement upon at least fourteen (14) days' written notice to Receptive to expire on or before the date set out in Receptive's notice.
If, at any time whilst using the Receptive Services, the Customer exceeds the following levels:
Emails sent: 100,000 /month
API calls: maximum of 100 /sec over any 60 second period
Database records: 1,000,000 total
Data storage including uploaded files: 10GB total.
Receptive may terminate this Agreement with immediate effect or at Receptive's discretion the Customer shall pay, Receptive's then current fees for such excess.
The Charges and other sums payable under this Agreement shall be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law the Customer shall pay to Receptive such sum as will, after the deduction or withholding has been made, leave Receptive with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
All Information of Receptive and all Intellectual Property in the Software and in or arising from the Receptive Services and/or any other services provided under or in connection with this Agreement shall be and shall remain at all times the exclusive property of Receptive or relevant third party and the Customer shall acquire no right, title or interest in or to the same and shall use such items solely as permitted by the terms of this Agreement.
Subject to the remainder of this clause 11, neither the Customer nor Receptive shall, without the other Party's prior written consent, disclose to any third party Information (other than the business name of the other Party) which comes to that Party's attention pursuant to this Agreement. Each Party shall only use the Information of the other Party to exercise its rights and/or perform its obligations under this Agreement.
The Customer agrees that Receptive may disclose the Information of the Customer to any relevant third party to the extent reasonably required by such third party in order to allow provision of the Receptive Services and/or any other services provided under or in connection with this Agreement.
The provisions of clause 11.1 shall not apply to information which:
is in or comes into the public domain otherwise than by breach of this Agreement, except that any compilation of otherwise public information in a form not publically known shall nevertheless be treated as confidential Information;
is in the other Party's possession prior to the commencement of negotiations for this Agreement as shown by written evidence that predates the date of such negotiations;
is or was lawfully received from a third party not under an obligation of confidentiality in respect of the same as shown by written evidence that predates the date of this Agreement;
was developed independently of and without reference to the other Party's Information; or
is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required), in which case each Party shall promptly notify the other Party of any such disclosure requirement.
Receptive shall be entitled to publicise that the Customer has licensed the Software and purchased the Receptive Services from Receptive in its advertising or promotional materials (including as case studies), press releases, tenders, proposal, speeches, website, articles and other similar materials.
Each Party shall be entitled to divulge the other Party's Information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with this Agreement provided that the receiving Party shall ensure that such persons are aware of and, shall procure that such persons comply with, these confidentiality obligations.
The restrictions contained in this clause 11 shall continue to apply after termination or expiry of this Agreement without limit in time.
This clause 12 sets out the entire financial liability of Receptive (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
arising under or in connection with this Agreement;
in respect of any use made by the Customer of the Receptive Services, the Documentation and/or any other services provided under or in connection with this Agreement or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
Except as expressly and specifically provided in this Agreement:
the Customer assumes sole responsibility for results obtained from the use of the Receptive Services and the Documentation by the Customer, and for conclusions drawn from such use. Receptive shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Receptive by the Customer in connection with the Receptive Services, or any actions taken by Receptive at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
the Receptive Services and the Documentation are provided to the Customer on an "as is" basis.
Nothing in this Agreement shall exclude or limit Receptive's liability for:
death or personal injury caused by its (or its employees', agents' or contractors') negligence; and
fraud or fraudulent misrepresentation; and
any other liability the exclusion or limitation of which is not permitted by English law.
Subject to clause 12.2 and clause 12.3:
Receptive shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits; loss of business; depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
Receptive's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Service Charges paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose or, where the claim arises after the expiry or termination of this Agreement, to the total Service Charges paid for the User Subscriptions during the 12 months immediately preceding the date of expiry or termination of this Agreement.
This Agreement shall, unless otherwise terminated as provided in this Agreement, commence on the Effective Date and shall continue for a period of one month and thereafter this Agreement shall be automatically renewed for successive periods of one month, unless either party notifies the other party of termination, in writing, to expire at the end of the month in which the notice was received.
A Party shall have the right to terminate this Agreement at any time on immediate notice to the other Party in the event that the other Party:
fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
commits an irremediable material breach of this Agreement, persistently repeats a remediable material breach or commits any remediable material breach and fails to remedy it within thirty (30) days of receipt of the notice of the breach requiring remedy of the same; or
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
Receptive may terminate this Agreement (or any part of it) and/or the Receptive Services (or any part of them):
by serving written notice on the Customer with immediate effect, if termination is required for legal or regulatory reasons;
on serving thirty (30) days prior written notice to the Customer if Receptive or its third party suppliers no longer operates or provides any or all of the products or services used in relation to the Receptive Services or intends to cease operating or providing any or all of such products or services in the immediate future.
The termination of this Agreement shall be without prejudice to the accrued rights and liabilities of either Party subsisting under this Agreement prior to termination.
Receptive may at its sole discretion suspend immediately the provision of the Receptive Services and/or any other services provided under this Agreement (or any part of them) until further notice on notifying the Customer either orally (confirming such notification in writing) or in writing if Receptive is entitled to terminate this Agreement. Any suspension of the Receptive Services shall not exclude Receptive's right subsequently to terminate this Agreement.
Consequences of Termination
Upon termination of this Agreement for any reason:
the Customer shall immediately cease to make use of the Receptive Services;
the Customer shall immediately pay any outstanding sums due under this Agreement; and
Receptive may destroy or otherwise dispose of any of the Customer Data in its possession unless Receptive receives, no later than 14 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent backup of the Customer Data. Receptive shall use reasonable commercial endeavours to deliver the backup to the Customer within 90 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay Receptive's fees agreed between the parties in returning the Customer Data to the Customer immediately upon receipt of an invoice from Receptive; and
each party shall either return or destroy all of the other party's Information or any document containing part thereof, together with all copies of such Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken.
Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
Any terms and conditions forming part of this Agreement which are agreed by the parties to survive termination or which by their nature are to survive termination, shall survive and continue in full force and effect.
Receptive shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Receptive or any other party), failure of a utility service or transport or telecommunications network, adverse economic impacts, 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.
Notices sent in respect of any matter arising in respect of this Agreement shall be in writing and must be sent either by:
pre-paid first class post; or
delivered by hand; or
A notice shall be sent or delivered to the address specified in this Agreement (as updated by notice in accordance with this section) or email notified by each party to the other from time to time. In the case of Receptive to firstname.lastname@example.org.
Notice is deemed given:
in the case of hand delivery – at the time the delivery is made;
in the case of posting– two (2) Working Days after the notice is posted; and
in the case of email – one (1) Working Day after the date the sender receives a successful delivery confirmation.
This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
The Customer shall not assign, purport to assign or otherwise transfer this Agreement and/or any of its obligations thereunder, in whole or in part, without Receptive's prior written consent.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Unless otherwise stated herein, this Agreement can only be modified by the written and signed agreement of the Parties.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Receptive may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
If any part of this Agreement is held unlawful, invalid or unenforceable, that part shall be considered struck out and the remainder of this Agreement shall remain in full force and effect. Receptive and the Customer shall work together in good faith to agree an enforceable replacement provision capturing the spirit of the original.
This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
The Parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it unless specifically provided for this Agreement.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims.
Data Protection Particulars
The subject matter and duration of the Processing
Customer personal data is held for the duration of the Agreement and for a further period of 90 days after termination of the agreement for backup purposes.
The nature and purpose of the Processing
By Receptive in order to perform the Receptive Services as contemplated by the Agreement or as otherwise agreed to between the Parties and not further or otherwise.
The type of Personal Data being Processed and class of Data Subjects
- Email address
- Phone number
- Email address
- Credit card details including the billing address associated with the credit card.
- Phone number
The categories of Data Subjects
- “Internal Users” are individuals given access to the internal part of the Receptive Services by the Customer, these should usually be employees of the Customer who use the Receptive Service.
- “Account Owners” are individuals that supply payment details to Receptive when the Customer chooses to pay for the Service by credit card.
- “End Users” are individuals given access to the customer part of the Receptive Services by the Customer, these should usually be the Customer’s Customers.
Any special categories of data
Receptive does not request or require any special categories of data.