Commercial Schedule
Last updated on 6th September 2024
These commercial terms and conditions (“Commercial Terms and Conditions”) apply to Purchasers that purchase a licence to any of the Products from Ardens and/or any Services from Ardens, whether such purchase is for the Purchaser’s own use (including its Users) and/or on behalf of an Organisation (including their Users) to have the benefit of such licence and/or Services.
Interpretation
In these Commercial Terms and Conditions, the following definitions apply (in addition to those already defined in the Terms of Supply and Use):
"Access Details "
the account and log-in details necessary to allow Ardens to carry out the Installation, and any other details which Ardens may reasonably request in order to permit the Purchaser to access any of the Products.
"Activation Date"
has the meaning given to it in Clause 3.2 of the Commercial Terms and Conditions.
"Applicable Laws"
means all applicable laws, statutes, regulations and codes from time to time in force.
"Business Day"
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Charges"
the charges payable by the Purchaser for the supply of the Products in accordance with Clause 14 of the Commercial Terms and Conditions (where appropriate).
"Commencement Date"
has the meaning given in Clause 2.6 of the Commercial Terms and Conditions.
"Confidential Information"
information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure.
"Confirmation Email"
has the meaning given to it in Clause 2.5 of the Commercial Terms and Conditions.
"Consultancy Services"
the services provided by Clause 7.5 of the Commercial Terms and Conditions.
"Control"
has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
"Documentation"
the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Ardens regarding the use of the Products.
"Installation"
the initial installation of the relevant Product(s) on the Principal GP IT System.
"Intellectual Property Rights"
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get- up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Maintenance Release"
release of the On-Premise Software that corrects faults, adds functionality or otherwise amends or upgrades the On-Premise Software, but which does not constitute a New Version.
"NHS"
means the National Health Service.
"NICE Guidance"
means the guidance published by the National Institute for Health and Care Excellence.
"Normal Business Hours"
09:00am to 17:00pm on Business Days.
"On-Premise Software"
has the meaning given to it in Clause 7 of the Commercial Terms and Conditions.
"Organisation Content"
any data, documents, text, process definitions or other content (together with any database made up of any of these), embodied in any medium, that are provided to Ardens by or on behalf of any Organisation (including any supplied by a User), in order to perform its obligations pursuant to a Supply Contract.
"Organisation Data"
the data provided by the Organisation (including any supplied by a Users) as part of its use of the Products.
"Service Levels"
in respect of a Service to be provided by Ardens pursuant to a Supply Contract, the service levels for the applicable Services (if any) as set out in the Service Specification (or Supply Contract if there is no Service Specification) or added by a change pursuant to the Terms of Supply and Use.
"Service Level Start Date"
the start of the month after the Installation (if any) has been satisfactorily completed by Ardens.
"Update"
a release of any of the Products that corrects faults, adds functionality or otherwise amends or upgrades the relevant Product, but which does not constitute a new product.
"Virus"
anything 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 Organisation experience, including worms, trojan horses, viruses and other similar things or devices.
Basis of Contract
2.1.
The Purchaser may submit a Request at any time. Each Request provided to Ardens constitutes an invitation to treat by the Purchaser.
2.2.
No quotation given by Ardens in respect of a given Request shall constitute an offer and is only valid for a period of thirty (30) days from its date of issue.
2.3.
Ardens may decide whether or not to accept the Purchaser’s Request in its absolute discretion.
2.4.
Where the Purchaser has requested Services, acceptance may be made contingent upon the agreement of a Service Specification pursuant to Clause 8.1 of these Commercial Terms and Conditions.
2.5.
If the Request is accepted, Ardens shall notify the Purchaser in writing of its acceptance, giving details of the Products/Services ordered ("Confirmation Email"). Ardens shall also provide the Purchaser with a link to the Product Specification.
2.6.
A binding contract (“Supply Contract”) shall be formed between Ardens and the Purchaser in accordance with these Conditions on the date of the Confirmation Email ("Commencement Date"). Where a Supply Contract already exists between the Purchaser and Ardens pursuant to a previous Request, it shall be varied in accordance with the most recent Confirmation Email, and the latest version of these Commercial Terms and Conditions then in force shall apply to the relevant Contract.
2.7.
By concluding a Supply Contract, the Purchaser hereby authorises Ardens to access the Organisation Solution via the Principal GP IT System in order to carry out the installation and support the Products on an ongoing basis thereafter, for the term of the relevant Supply Contract.
2.8.
Ardens shall use all reasonable endeavours to supply the Products and Services to the Organisation in accordance with the Confirmation Email in all material respects.
2.9.
Ardens shall use all reasonable endeavours to meet any performance dates specified in these Commercial Terms and Conditions or the Confirmation Email, but any such dates shall be estimates only and time shall not be of the essence in respect of them.
2.10.
Any samples, drawings, descriptive matter or advertising issued by Ardens or found on its website and any demonstrations of the Products by Ardens are given, issued or published for the sole purpose of giving an approximate idea of the Products. They shall not form part of the Supply Contract or have any contractual force.
2.11.
These Commercial Terms and Conditions apply to the Supply Contract to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Product Activation
3.1.
If requested, the Purchaser shall supply accurate Access Details to Ardens within 5 (five) Business Days following the Commencement Date.
3.2.
Ardens shall carry out the Installation within a reasonable time following receipt of all relevant Access Details, via remote access to the Principal GP IT System. Following successful Installation, Ardens shall inform the Purchaser in writing that the Products they have ordered have been successfully installed and are ready for service (the “Activation Date”).
3.3.
Where Installation of new versions or iterations of Products takes place during a Product Licence term, Ardens shall use reasonable endeavours to communicate with the Purchaser in writing, the steps needed to make such Installation and the proposed Installation date.
3.4.
Where the Access Details change during the term of the Supply Contract, the Purchaser shall promptly provide Ardens with new valid Access Details in order to permit Updates and fixes to be installed.
Software as a Service
4.1.
The terms of this Clause 4 apply where the Purchaser orders a Product Licence for Ardens Manager.
4.2.
The Organisation's access to Ardens Manager shall be limited to the Organisation(s) (and Users) who are licensed to use Ardens Manager.
4.3.
The Purchaser shall ensure that each Organisation (and User) accepts the terms of the End User Licence Agreement (“EULA”) (and linked Acceptable Use Policy, Privacy Policy and Cookie Policy) and keeps 'strong' passwords (passwords that use a combination of upper and lower case letters, numbers, and symbols) and adheres to recognised industry practices in relation to password security for its use of Ardens Manager, and that each Organisation (and User) keeps its password confidential
4.4.
In the event of a failure to comply with its obligations relating to Ardens Manager, Ardens will use all reasonable commercial endeavours to correct the same promptly, or as soon as reasonably practicable provide the Purchaser with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Purchaser’s sole and exclusive remedy for any breach of this Clause. The obligations in this Clause shall not apply to the extent any failure is caused by a Force Majeure Event or any default by the Purchaser.
4.5.
Ardens reserves the right to modify Ardens Manager in any manner which: (i) is necessary to comply with any Applicable Law or safety requirement; or (ii) does not materially affect the nature or quality of the same, and Ardens shall notify the Purchaser in any such event. Any other modification required by Ardens shall be implemented pursuant to the Variation procedure.
4.6.
It is the responsibility of the Purchaser to ensure that Organisations (and Users) appropriately back-up Organisation Data.
Warranties and Obligations
5.1.
Ardens warrants that:
5.1.1.
the Products will substantially comply with the Product Specification and the Documentation;
5.1.2.
the Services will substantially comply with the Service Specification; and
5.1.3.
it shall use reasonable endeavours to provide the Services in accordance with that degree of care, skill, diligence, prudence, efficiency, foresight and timeliness which would be reasonably expected at such time from a supplier of similar services to the Services governed by these Commercial Terms and Conditions (“Good Industry Practice”) and in accordance with Applicable Laws.
5.2.
No warranty is given by Ardens:
5.2.1.
in respect of any Products which are the subject of a Trial Licence;
5.2.2.
apart from those warranties and obligations set out in Clause 6 below, in respect of a Beta Licence;
5.3.
in respect of:
5.3.1.
any data uploaded by the Purchaser and/or the Organisation during its day-to-day use of the Products;
5.3.2.
any data uploaded by Ardens on behalf of the Purchaser and/or the Organisation; and/or
5.3.3.
any delays, unexpected results, loss of data or communications resulting from the uploading of such data;
5.4.
that the Principal GP IT System will continue to perform as it needs to in order to support the Products, and further that the functionality of the Principal GP IT System will not change, thereby potentially impeding or preventing the operation of the Products in the future;
5.5.
that information which the Products request from a user is relevant and complete, either in respect of any particular patient’s condition, or as to any aspect of the Purchaser’s business; nor that any output from a Product is relevant and complete in relation to such matters; nor that any source document relied upon by a Product is correct and relevant;
5.6.
that any IT system and internet connection of the Purchaser and/or the Organisation will perform as they need to in order to support the Products (including any On-Premise Software), nor that emails and other communications sent using a Product will inevitably be received by the recipient, nor that the Principal GP IT System is available to the Organisation via the internet;
5.7.
that the Principal GP IT System is itself suitable for recording and processing patient data and/or complies with data protection law;
5.8.
which relieves, in whole or in part, the Purchaser of any aspect of his or her duty to the patient, which may from time to time include exercising independent clinical judgment, checking that communications from Products have been received in a timely fashion by the intended recipient thereof and obtaining the necessary consents from the patient for the purposes of processing the patient’s personal data using the Principal GP IT System;
5.9.
The Products (including any On-Premise Software) are provided “as-is.” Ardens disclaims all other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose and any warranties arising out of course of dealing or usage in trade.
5.10.
Ardens shall use reasonable endeavours in accordance with that degree of care, skill, diligence, prudence, efficiency, foresight and timeliness which would be reasonably expected at such time from a supplier of similar services to the Services governed by these Terms of Supply and Use (“Good Industry Practice”) to ensure that the Products are free of Viruses and other malicious code.
5.11.
The Organisation shall notify Ardens as soon as possible of any errors or functionality issues in any Product, providing any details as Ardens may reasonably request in respect of the same. Ardens will work with the Organisation, as well as with the provider of the Principal GP IT System, to resolve any such errors. Where errors result from issues with the Principal GP IT System, it is the responsibility of the Organisation to resolve them directly with the provider.
5.12.
The Purchaser shall ensure that:
5.12.1.
the Organisation’s (including any Users) IT system and internet connection will perform as they need to in order to support the Product,
5.12.2.
no Personal Data is made available or can be viewed, accessed, or otherwise seen by Ardens during the supply by Ardens of the Ardens Clinical services, and
5.12.3.
any data visible during the supply by Ardens of the Ardens Clinical services, shall be limited to test data only and shall not contain any Personal Data.
5.13.
The medical information which may be part of the Products is provided without any representations or warranties, express or implied. Without prejudice to the generality of the foregoing paragraph, Ardens does not warrant or represent that such medical information:
5.13.1.
will be constantly available, or available at all; or
5.13.2.
is complete, true, accurate, up to date or non-misleading.
5.14.
Save as expressly set out in these Commercial Terms and Conditions, no conditions, warranties, representations or other terms (whether express or implied or arising through trade usage or custom) apply to anything supplied under or in relation to the Supply Contract by Ardens (including the Products and Services).
Beta Products
6.1.
Ardens shall:
6.1.1.
provide the new Beta Product to the Purchaser of the Beta Product for feedback and evaluation purposes; and
6.1.2.
provide support and training with respect to the Beta Product during Normal Business Hours.
6.2.
Purchasers of Beta Products shall:
6.2.1.
provide reasonable feedback to Ardens concerning the features and functionality of the Beta Product at regular intervals;
6.2.2.
submit feedback forms containing accurate, complete information as may be reasonably requested by Ardens with respect to the functionality of the Beta Product; and
6.2.3.
co-operate in a timely manner with any reasonable request made by Ardens with respect to the Beta Product.
6.3.
The Purchaser acknowledges and agrees that:
6.3.1.
the Beta Product is not an Ardens product which is ready for commercial release by Ardens;
6.3.2.
no obligations or assurances are given by Ardens in relation to the availability or uptime of the Beta Product;
6.3.3.
the Beta Product may not operate properly, be in final form or fully functional and may contain errors, design flaws or other defects;
6.3.4.
it may not be possible to make the Beta Product fully functional, and Ardens reserves the right to abandon its development at any time and without any obligation or liability to the Purchaser; and
6.3.5.
the information obtained using the Beta Product may not be accurate and may not accurately correspond to information extracted from any database or other data source;
6.3.6.
use of the Beta Product may result in delays, unexpected results, loss of data or communications;
6.3.7.
they shall not rely or depend on the Beta functionality for any reason and are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored, or otherwise processed by the Beta Product;
6.3.8.
they shall be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of its use of the Beta Product; and
6.3.9.
all Intellectual Property Rights in the feedback provided by the Purchaser to Ardens regarding the Beta Product shall be owned by Ardens.
On-Premise Software
7.1.
Ardens may, from time to time, provide certain on-premise software to the Purchaser in addition to and/or as part of the Products (“On-Premise Software").
7.2.
Where the Purchaser agrees and acknowledges that where it receives any such On-Premise Software from Ardens, that it shall be solely responsible for the correct installation and configuration of the On-Premise Software in accordance with Ardens instructions and specifications.
7.3.
Ardens shall provide the Purchaser with all necessary documentation and support required for the installation and proper use of the On-Premise Software.
7.4.
Ardens will provide the Purchaser with all Maintenance Releases generally made available to its customers in relation to the On-Premise Software. Ardens shall use reasonable endeavours to test a Maintenance Release prior to providing the same to the Purchaser but warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the On-Premise Software.
7.5.
The Purchaser agrees that it shall install all Maintenance Releases as soon as reasonably practicable after receipt and in accordance with any timescales instructed to it by Ardens.
Consultancy Services
8.1.
Where the Purchaser requests Consultancy Services from Ardens, the parties shall agree a Service Specification in writing in respect of the same, such specification to include:
8.1.1.
details of the work to be carried out by Ardens;
8.1.2.
the location(s) where the Consultancy Services are to be performed;
8.1.3.
any milestones for service completion; and
8.1.4.
the Charges applicable to the Consultancy Services.
8.2.
Ardens shall provide the Consultancy Services substantially in accordance with any agreed Service Specification.
8.3.
Ardens shall:
8.3.1.
provide the Consultancy Services with all due skill, care and ability; and
8.3.2.
promptly furnish the Purchaser with any relevant information regarding the Consultancy Services.
Indemnity and Liability
9.1.
Ardens holds no responsibility for any reports generated by the Purchaser or Ardens through its use of any of the Products and/or Services and which the Purchaser may rely on in the course of its business.
9.2.
The Purchaser indemnifies Ardens in respect of any liability or alleged liability of Ardens arising out of or in connection with the use or misuse of the Products
9.3.
Nothing in the Supply Contract shall limit or exclude the liability of either party for:
9.3.1.
death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
9.3.2.
fraud or fraudulent misrepresentation;
9.3.3.
any indemnity given in these Commercial Terms and Conditions; or
9.3.4.
any other liability which cannot be limited or excluded by law.
9.4.
Subject to Clause 9.3, all conditions, warranties, terms, representations and undertakings, express or implied (whether they are implied by statute, common law or in any other way) not expressly set out in these Commercial Terms and Conditions are excluded to the fullest extent permitted by law.
9.5.
Subject to Clause 9.3, in no circumstances shall Ardens’ liability to the Purchaser of any nature arising out of or in connection with the Supply Contract for a single incident or series of related incidents exceed the greater of:
9.5.1.
in respect of a single instance or series of instances relating to a particular Organisation, the value of the invoices attributable to that particular Organisation’s use of the Products; and
9.5.2.
the value of all invoices during the [12 (twelve)] months immediately preceding the date of the events giving rise to such claim.
9.6.
Subject to clause 8.3, Ardens shall have no liability for any indirect or consequential losses, or for any of the following types of loss or damage (whether direct or indirect):
9.6.1.
loss of anticipated profits or earnings;
9.6.2.
loss of sales or business;
9.6.3.
loss of agreements or contracts;
9.6.4.
loss of anticipated savings;
9.6.5.
losses which are due to a change in the functionality of the Principal GP IT System which impedes or prevents the operation of the Products;
9.6.6.
loss of use or corruption of software, data or information;
9.6.7.
loss of or damage to goodwill;
9.6.8.
the security of the Purchaser’s and/or Organisation’s use of the Products;
9.6.9.
any loss arising out of or in connection with any incorrect or out-of-date information provided by the Purchaser to Ardens in connection with this Agreement, a Confirmation Email (or similar); or
9.6.10.
any loss arising out of or in connection with a breach of the Supply Contract by the Purchaser.
9.7.
This Clause 9 shall survive termination of the Supply Contract.
Intellectual Property Rights
10.1.
The Purchaser acknowledges and agrees that Ardens is the owner of all the Intellectual Property Rights in the Products as defined in these Commercial Terms and Conditions and as updated from time to time.
10.2.
Except as expressly stated herein, these Commercial Terms and Conditions do not grant the Purchaser any Intellectual Property Rights or any other rights or licences to, in or in respect of the Products or Services.
10.3.
Insofar as the Products are updated, whether by incorporation of information supplied by the Purchaser or otherwise, the Intellectual Property of the Products as updated shall vest or remain vested in Ardens.
10.4.
The Purchaser will not copy, distribute, sell, sublicense or otherwise transfer or make available the Products or any portion thereof to any third party, or remove from view any copyright legend, trademark or confidentiality notice appearing on the Products.
10.5.
The Purchaser grants Ardens a fully paid-up, non-exclusive, royalty- free, non- transferable licence to copy and modify any materials provided by the Purchaser to Ardens for the purpose of supplying the Products.
10.6.
Nothing in these Commercial Terms and Conditions shall be construed as to prevent Ardens from using in the furtherance of its own business general know-how, tips, improvements and/or other expertise gained in its performance of a Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of Clause 11 or any infringement of any Intellectual Property Rights.
10.7.
Ardens may not use any of the Organisation Data or Organisation Content for any purpose other than to provide the Products and/or perform the Services except that Ardens may make use of anonymised and aggregated data derived from the Organisation Data and Organisation Content (and shall include no references to the Organisation, or where relevant, any of its Affiliates and shall be used and presented in such a way that it is not possible for any third party to discern or extrapolate any reference to the Organisation or its Affiliates) for any purpose. The Purchaser acknowledges and agrees that any Intellectual Property rights arising out of or relating to the anonymised and aggregated data derived from Organisation Data and Organisation Content shall be owned by Ardens.
Confidentiality
11.1.
The Purchaser acknowledges that the Products contain Confidential Information and trade secrets of Ardens.
11.2.
The Purchaser undertakes that it shall not disclose to any third party without the prior written approval of Ardens, any Confidential Information in respect of any Product, including its features, screens, feedback, the content of any report generated by a Product, related technical information, or the results of any performance or functional evaluation or test.
11.3.
The Purchaser will use no less than its best efforts to protect the Confidential Information from unauthorised use or disclosure.
11.4.
The Purchaser may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for the Purchaser’s evaluation and use of the Products and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein.
11.5.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Commercial Terms and Conditions. A party's Confidential Information shall not include information that:
11.5.1.
is or becomes publicly known other than through any act or omission of the receiving party;
11.5.2.
was in the other party's lawful possession before the disclosure;
11.5.3.
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.5.4.
is independently developed by the receiving party, which independent development can be shown by written evidence.
11.6.
Subject to Clause 11.7 below, each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the performance of its obligations under these Commercial Terms and Conditions.
11.7.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.8.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party, provided that Confidential Information was not disclosed to that third party in violation of these Commercial Terms and Conditions.
Clinical Guidelines
12.1.
All clinical guidance on Ardens is published according to Ardens’ Clinical Governance Procedures Policy.
12.2.
The medication protocols, alerts and reports are intended only as an aid to clinical judgement when a patient is stable on their medication. The patient may require more frequent monitoring when starting a medication, changing doses, altering other medications that they take and if disease remission or relapse occurs. The test result threshold ranges are only intended for use as a guide and interpretation of any results remains the responsibility of the Purchaser at all times.
12.3.
Ardens does not assume or undertake to discharge any obligations or responsibilities of the Purchaser, product manufacturer or any other party, including but not limited to those responsibilities and obligations of the treating clinician in connection with clinical and treatment decisions.
Support
13.1.
Ardens will provide Purchasers with help, support, feedback and request mechanisms during Normal Business Hours (“Support Services”). Urgent or out of hours support may be provided where agreed with the Purchaser in writing, or subject to an agreement concluded between Ardens and the Purchaser. The Support Services may be delivered by email, telephone, screensharing or remote access via terminal to the Purchaser’s system or as otherwise detailed in a Service Specification.
13.2.
Ardens shall use its reasonable endeavours to comply with any applicable Service Levels from the Service Level Start Date.
Charges and Payment
14.1.
Where the relevant Product has been licensed pursuant to a written agreement between Ardens and the Purchaser, the provisions of this Clause shall not apply.
14.2.
Where Charges are payable under a Supply Contract, they shall be set out in the Confirmation Email or Consultancy Services Specification. The Purchaser shall pay the Charges in accordance with these Conditions, together with any traveling expenses incurred by Ardens in the performance of the Services. Any additional, chargeable items that are separate from the Charges shall be specified in the Product Specification, Confirmation Email, Consultancy Services Specification, or otherwise confirmed in writing to the Purchaser by Ardens.
14.3.
Where the Purchaser has continued to use any Product following the expiry of a Trial Licence, Ardens may invoice the Purchaser for the Charges as though the Organisation had purchased a Standard Licence to the relevant Product(s) and may suspend provision of the Product(s) until payment is received.
14.4.
Ardens reserves the right to amend the Charges upon giving a minimum of 28 days' notice to the Purchaser prior to the commencement of the next Renewal Period.
14.5.
Ardens shall invoice the Purchaser in advance of providing the Products and will commence or continue the supply of the Products (as applicable) only once payment in full is received, unless otherwise agreed in writing between the parties. Funds must be cleared before payment is accepted.
14.6.
The Purchaser shall pay each invoice submitted by Ardens:
14.6.1.
within fourteen (14) days of the date of the invoice; and
14.6.2.
in full and in cleared funds to a bank account nominated in writing by Ardens.
14.7.
Time for payment shall be of the essence of the Supply Contract.
14.8.
All amounts payable by the Purchaser under the Supply Contract are exclusive of amounts in respect of value added tax or any other sales or service taxes chargeable from time to time.
14.9.
If the Purchaser fails to make a payment due to Ardens under the Supply Contract by the due date, then, without limiting Ardens’ remedies under Clause 16, the Purchaser shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
14.10.
All amounts due under the Supply Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Term and Termination
15.1.
Each Supply Contract which is subject to these Commercial Terms and Conditions shall commence on the Commencement Date and shall continue in force for the Initial Term, unless otherwise terminated in accordance with its terms. Save for where a Renewal Period or similar renewal term is specified in the Confirmation Email, the Supply Contract shall thereafter automatically renew for one year on a rolling basis (which shall be deemed as the Renewal Period). Where a Supply Contract automatically renews, either party may terminate the Supply Contract on no less than sixty (60) days' written notice to the other.
15.2.
Ardens may terminate the Supply Contract on the expiry of the Initial Term or any Renewal Period where:
15.2.1.
any agreement between Ardens and a Purchaser under which Products are licensed to the Purchaser in accordance with these Conditions is terminated;
15.2.2.
the Supply Contract cannot be further renewed without payment of additional Charges in respect of the upcoming Renewal Period; or
15.2.3.
the Purchaser is either unwilling or unable to pay the relevant Charges.
15.3.
Without affecting any other right or remedy available to it, either party may terminate the Supply Contract with immediate effect by giving written notice to the other party if:
15.3.1.
the other party commits a material breach of any term of the Supply Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
15.3.2.
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;
15.3.3.
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
15.3.4.
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 Supply Contract has been placed in jeopardy.
15.4.
Without affecting any other right or remedy available to it, Ardens may terminate the Supply Contract with immediate effect by giving written notice to the Purchaser if:
15.4.1.
the Purchaser fails to pay any amount due under the Supply Contract on the due date for payment; or
15.4.2.
there is a change of control of the Purchaser.
15.5.
Upon termination of the Supply Contract:
15.5.1.
the licence granted shall terminate;
15.5.2.
any EULA shall terminate;
15.5.3.
all obligations owed by either party to the other under the Supply Contract shall cease, save that (a) the indemnity shall continue; and (b) the obligation of confidentiality shall continue;
15.5.4.
Ardens are unable to offer any refunds once a payment has been made for any of the Ardens packages; and
15.5.5.
the Purchaser shall immediately cease using the Products and the Products shall be removed from all of the Purchasers computers and any other devices upon which it is installed.
15.6.
Where a prospective Purchaser has agreed in principle to contract for the provision of Products and/or Services and Ardens has agreed to make the same available to an Organisation, until such time as the prospective Purchaser has entered into a Contract with Ardens, the Organisation agrees on an interim basis to contract for the provision of Products and/or Services.
15.7.
In the event of a termination or expiry of a Standard Licence, a Organisation may agree to retain use of the Products subject to the Organisation and Ardens entering into a separate Product Licence (which for the avoidance of doubt may include a Trial Licence) in order to permit the Organisation to continue to use the Products and the accompanying Services, and for Ardens ongoing processing and use of the data uploaded by the Organisation during its use of the Products.
15.8.
Where Ardens and the Organisation have agreed to enter into a separate Product Licence on termination or expiry of a Standard Licence, Ardens shall confirm with the Purchaser and the Organisation an appropriate transition period in writing, no later than thirty (30) days before the date of termination or expiry.
15.9.
Ardens shall, at the choice of the controller, delete all personal data processed on behalf of the Purchaser and certify to the Purchaser that it has done so, or return all the personal data to the Purchaser and delete existing copies unless the law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.
Entire Agreement
16.1.
The Supply Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2.
Each party acknowledges that in entering into the Supply Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Supply Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Supply Contract.
16.3.
Nothing in this Clause shall limit or exclude any liability for fraud.
