These TERMS OF SERVICE (“Terms of Service”) constitute a binding contract between you (“Subscriber” or “Customer” or “you”) and Myhrtoolkit Limited, a limited liability company registered in England with company number 05402463 (“Company”), regarding the terms under which the Company will provide the Customer with access to the Services.

BY USING THE SITE, the Customer SIGNIFIES ITS AGREEMENT TO ABIDE BY THESE TERMS OF SERVICE (“Acceptance”). The Customer agrees that its assent will have the same legal effect as if it had been personally signed by Customer. To the extent permitted by law, these Terms of Service are intended to supersede any provisions of applicable law, which might otherwise limit their enforceability or effect, because they were entered into electronically. Please print a copy of these Terms of Service for future reference.

BACKGROUND

1. Myhrtoolkit has developed an online training service which it makes available to Customers through the internet on a pay-per-use, subscription basis, for the Customers to use for the purposes of staff training (Agilio iLearn SME).
2. Myhrtoolkit agrees to provide and the Customer agrees to take and pay for Myhrtoolkit's service subject to the terms and conditions of this agreement.

AGREED TERMS

1. INTERPRETATION
   1. The definitions and rules of interpretation in this clause apply in this agreement.
      1. Authorised Users: current employees, workers, contractors, volunteers and other expressly authorised agents and officers of the Customer all of whom must be authorised by the Customer to use the Services.
      2. Authorised Third Party Providers: means the third-party providers appointed by Myhrtoolkit to provide Processing services of various kinds in a manner compatible with the terms of this Agreement and the Data Protection Legislation. The list of Authorised Third Party Providers dated 25 May 2018 can be found at APPENDIX A, at the foot of this document.
      3. Business Day: any day which is not a Saturday, Sunday or public holiday in England and Wales.
      4. Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
      5. Confidential Information: information that is proprietary, confidential or contains Personal Data and is either clearly labelled as such or identified as Confidential Information in clause 10.
      6. Administrator: those Authorised Users whose status in the Software is set to “Administrator” and therefore has the administration rights relevant to that status.
      7. Customer Data: the data inputted by the Customer (or the Customer's authorised agents) and their Authorised Users for the purpose of using the Services or facilitating the Customer's use of the Services.
      8. Data Protection Legislation: the Data Protection Act 2018 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998 (“GDPR”).
      9. Effective Date: refers to the date that the Company confirms Subscriber’s right to use the iLearn password protected website
      10. Fee: the fees payable by the Customer to Myhrtoolkit for the use of the Services.
      11. Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
      12. Password: those passwords used by each Authorised User required to access the Services.
      13. Personal Data, Personal Data Breach, Process, Processed or Processing: shall each have the meaning as set out in Data Protection Legislation.
      14. Services: the provision of Agilio iLearn SME (the Software) and any ancillary support or features to the Customer under this agreement via https://sme-ilearn.agiliosoftware.com/ or any other website notified to the Customer by Myhrtoolkit from time to time.
      15. Subscription Term: means periods of one calendar year, starting on the Effective Date.
      16. T&Cs page: the page available to the Customer at the foot of the iLearn home page which contains the various terms and conditions of use, and any relevant policies.
      17. Virus: any program which contains malicious code or infiltrates or damages a computer system without the owner's informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.
   2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
   3. 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.
   4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
   5. Words in the singular shall include the plural and vice versa.
   6. A reference to one gender shall include a reference to the other genders.
   7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
   8. A reference to writing or written includes faxes and e-mail.
   9. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. SERVICES
   1. Myhrtoolkit shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
   2. Myhrtoolkit shall use all reasonable endeavours (subject to the terms of this Agreement) to make the Services available 24 hours a day, seven days a week.
   3. Myhrtoolkit will, as part of the Services, and at no additional cost to the Customer, provide an Administrator with Myhrtoolkit's standard customer support services during Normal Business Hours.
   4. The rights provided under this clause 2 are granted to the Customer only, and shall not be deemed granted to any subsidiary or holding company of the Customer without the written authority of Myhrtoolkit, which shall not be unreasonably withheld.
3. DATA PROTECTION
   1. The parties acknowledge and agree that certain Customer Data under this Agreement may constitute Personal Data subject to Data Protection Legislation. The Customer wishes to appoint Myhrtoolkit to Process such Personal Data in accordance with the terms of this Agreement. Both parties will comply with all applicable requirements of the Data Protection Legislation when processing Personal Data. The Processing activities of Myhrtoolkit shall consist of the storage of personal data of the Data Controller’s Authorised Users and the management of the Software to effectively and securely effect that processing.
   2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Myhrtoolkit is the Data Processor of any Personal Data arising under this agreement (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
   3. Each party shall take appropriate technical and organisational measures against unauthorised or unlawful Processing of the Personal Data or its accidental loss, destruction or damage.
   4. Without prejudice to the generality of clause 3.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (including sensitive Personal Data) to Myhrtoolkit for the duration and purposes of this agreement.
   5. Without prejudice to the generality of clause 3.1, Myhrtoolkit shall, in relation to any Personal Data Processed in connection with the performance by Myhrtoolkit of its obligations under this agreement:
      1. Process that Personal Data only on the written instructions of the Customer (including the lawful terms of this Agreement) unless Myhrtoolkit is required by the Data Protection Legislation or the laws of any member of the European Union or by the laws of the European Union applicable to Myhrtoolkit (the Applicable Laws) to Process Personal Data. Where Myhrtoolkit is relying on Applicable Laws as the basis for Processing Personal Data, Myhrtoolkit shall promptly notify the Customer of this before performing the Processing required by the Applicable Laws unless those Applicable Laws prohibit Myhrtoolkit from so notifying the Customer;
      2. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential;
      4. All transfers of your personal information outside of the UK are confirmed to have adequacy controls in place with UK GDPR, for example; GDPR for transfer between the UK and EEA and where the following conditions are fulfilled:
         1. the Customer or Myhrtoolkit has provided appropriate safeguards in relation to the transfer in accordance with the requirements of the Data Protection Legislation; and
         2. the data subject has enforceable rights and effective legal remedies;
         3. Myhrtoolkit complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
         4. Myhrtoolkit complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data;
      5. assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with the Customer’s obligations as data controller under the Data Protection Legislation and having regard to any relevant and lawful Myhrtoolkit policies with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify the Customer without undue delay or in accordance with the requirements of GDPR on becoming aware of a Personal Data Breach;
      7. at the choice of the Customer, delete Personal Data or return all Personal Data to the Customer upon termination of the agreement, unless required by Applicable Laws to store the Personal Data; and
      8. maintain, and make available to Customer, complete and accurate records and information to demonstrate its compliance with this clause 3.
      9. Subject to clause 5.2 the Customer consents to Myhrtoolkit appointing the Authorised Third Party Providers as third-party processors of Personal Data under this agreement. Myhrtoolkit confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are those set out in this clause 3. As between the Customer and Myhrtoolkit, subject to clause 11 and 12 below, Myhrtoolkit shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 3.
      10. Myhrtoolkit may, at any time on not less than 30 days’ notice, revise this clause 3 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement) subject to the agreement of the customer, such agreement not to be unreasonably withheld.
      11. If Myhrtoolkit appoints a new subcontractor to Process Personal Data on behalf of the Customer or intends to make any changes concerning the addition or replacement of the subcontractors set out in the list of Authorised Third Party Providers, it shall (unless at the reasonable discretion of Myhrtoolkit this is not possible) provide the Customer with thirty (30) business days’ prior written notice. In appointing any Third Party Processor, Myhrtoolkit will comply with the Data Protection Legislation and in particular Article 5(f) relating to appropriate security.
4. CUSTOMER DATA
   1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
   2. Subject to clause 3.5.2 above, Myhrtoolkit shall use reasonable commercial endeavours to keep Customer Data secure and backed up for the purposes of disaster recovery. Please refer to the iLearn Security Statement.
   3. Where the Customer has mistakenly deleted or wrongly modified Customer Data Myhrtoolkit may, at the Customer’s request and on the payment of a reasonable fee (and in a reasonable time frame), be able to rectify the error. This is only possible in limited circumstances and cannot be guaranteed.
   4. In the event of any loss or damage to Customer Data, except where the loss or damage is due directly to the negligence or breach of contract of Myhrtoolkit, the Customer's sole and exclusive remedy shall be for Myhrtoolkit to use reasonable commercial endeavours to restore as much of the lost or damaged Customer Data as is reasonably possible from the latest back-up of such Customer Data maintained by Myhrtoolkit.
   5. Subject to clause 3.5.2 above, Myhrtoolkit shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except Authorised Third Party Providers (subject to 3.5.9)).
   6. The Customer is entitled to use the Services to upload and store Customer Data related to its employees in accordance with industry standard practice. The Services are not intended as a general data storage facility for the Customer and the Customer’s use of the Services to upload and store Customer Data must be reasonable when compared to normal usage by other similar customers.
5. MYHRTOOLKIT'S OBLIGATIONS
   1. Myhrtoolkit undertakes that the Services will be performed with reasonable skill and care with due diligence, in good faith and to the standard expected of a professional software services provider.
   2. Should Myhrtoolkit subcontract any technical work to any third parties, Myhrtoolkit will ensure that it has in place with that sub-contractor a suitable written commercial agreement which confirms that the third party will conform to the requirements of the Data Protection Legislation.
   3. The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Myhrtoolkit's instructions, or modification or alteration of the Services by any party other than Myhrtoolkit or Myhrtoolkit's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Myhrtoolkit will use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
   4. Notwithstanding the foregoing, Myhrtoolkit:
      1. does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6. CUSTOMER'S OBLIGATIONS
   1. The Customer shall:
      1. provide Myhrtoolkit with all necessary co-operation in relation to this agreement; and all necessary and reasonable access to such information as may be required by Myhrtoolkit in order to provide the Services reasonably and securely;
      2. comply with all applicable laws and regulations with respect to its activities under this agreement;
      3. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner;
      4. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and with the User Guidance (as amended from time to time) which can be accessed in the Services, and shall be responsible for any Authorised User's breach of this agreement;
      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Myhrtoolkit, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
      6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Myhrtoolkit's data centres, 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.
   2. The Customer shall not (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement)::
      1. knowingly or negligently upload, or allow to be uploaded by any Authorised User or third party, any Virus to the system;
      2. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
      3. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      4. access all or any part of the Services in order to build a product or service which competes with the Services; or
      5. unless expressly authorised by Myhrtoolkit use the Services to provide services to third parties; or
      6. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
      7. attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided for under this agreement.
   3. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, as soon as practicable notify Myhrtoolkit.
7. AUTHORISED USERS
   1. Subject to the Customer paying the Fee and the other terms and conditions of this agreement, Myhrtoolkit hereby grants to the Customer a non-exclusive, non- transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business operations.
   2. The Customer shall ensure that Authorised Users who leave the employment of (or cease to be retained by) the Customer have their access to the system removed on or before the termination of employment.
   3. The Customer undertakes that it will not allow or suffer any Password to be used by more than one Authorised User and confirms that it will use reasonable endeavours to ensure that each Authorised User keeps his password confidential. The Customer will also ensure that each Password is reasonably secure.
   4. The Customer shall not permit any Authorised User to upload, access, store, distribute or transmit any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is knowingly unlawfully discriminatory or otherwise illegal; or
      6. causes damage or injury to any person or property;
      7. and Myhrtoolkit reserves the right, without liability to the Customer, to remove any material that breaches the provisions of this clause.
8. CHARGES AND PAYMENT
   1. The Customer shall pay the Fees to Myhrtoolkit in accordance with this clause 8 and the standard price bands as published from time to time.
   2. Myhrtoolkit reserves the right to increase the annual subscription fees in each band by no more than 5% above the retail price index.
   3. The Customer shall pay each invoice within 30 days of issue.
   4. If Myhrtoolkit has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Myhrtoolkit:
      1. Myhrtoolkit may, without liability to the Customer (and without prejudice to its rights to be paid the Fees), disable the Customer's password, account and access to all or part of the Services and Myhrtoolkit shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. interest shall accrue on such due amounts at an annual rate equal to 2% over the then current base lending rate of Myhrtoolkit's bankers in the UK at the date the relevant invoice was due commencing on the due date and continuing until fully paid, whether before or after judgment.
   5. All amounts and fees stated or referred to in this agreement:
      1. shall be payable in pounds sterling;
      2. are, subject to clause 12.4.2, non-cancellable and non-refundable;
      3. are exclusive of value added tax, which shall be added to Myhrtoolkit's invoice(s) at the appropriate rate.
   6. Any failure by Myhrtoolkit to reduce the Fee in line with the number of Authorised Users does not give rise to any rebate unless the Customer has informed Myhrtoolkit of the change in the number of Authorised Users in writing prior to renewal of the Subscription Term.
9. PROPRIETARY RIGHTS
   1. The Customer acknowledges and agrees that Myhrtoolkit owns all intellectual property rights in the Services and Software. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
   2. Myhrtoolkit confirms that it has all the rights in relation to the Services and Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10. CONFIDENTIALITY
    1. Myhrtoolkit may from time to time be given access to the Customer's Confidential Information in order to perform its obligations under this agreement. Confidential Information shall not be deemed to include information that:
       1. is or becomes publicly known other than through any act or omission of the receiving party;
       2. was in the other party's lawful possession before the disclosure;
       3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
       4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
       5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Myhrtoolkit shall hold the Customer's Confidential Information in confidence and, unless required by law, not make the Customer's Confidential Information available to any third party, or use the Customer's Confidential Information for any purpose other than the implementation of this agreement.
    3. Myhrtoolkit shall take all reasonable steps to ensure that the Customer's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
    4. Provided that it has complied with this Clause 10, Myhrtoolkit shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    5. The Customer shall hold any of Myhrtoolkit's Confidential Information strictly in confidence.
    6. Myhrtoolkit acknowledges that the Customer Data is the Confidential Information of the Customer.
    7. This clause 10 shall survive termination of this agreement, however arising.
11. INDEMNITY
    1. The Customer shall defend, indemnify and hold harmless Myhrtoolkit against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
       1. the Customer is given prompt notice of any such claim;
       2. Myhrtoolkit provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
       3. the Customer is given sole authority to defend or settle the claim.
    2. Myhrtoolkit shall, subject to clause 11.4, defend the Customer, its officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
       1. Myhrtoolkit is given prompt notice of any such claim;
       2. the Customer provides reasonable co-operation to Myhrtoolkit in the defence and settlement of such claim, at Myhrtoolkit's expense; and
       3. Myhrtoolkit is given sole authority to defend or settle the claim.
    3. In no event shall Myhrtoolkit, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
       1. a modification of the Services or Software by anyone other than Myhrtoolkit; or
       2. the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Myhrtoolkit; or
       3. the Customer's use of the Services after notice of the alleged or actual infringement from Myhrtoolkit or any appropriate authority.
    4. The foregoing states the Customer's sole and exclusive rights and remedies, and Myhrtoolkit's (including Myhrtoolkit's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
    1. Subject to the provisions of clause 11 above this clause 12 sets out the entire financial liability of Myhrtoolkit (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
       1. any breach of this agreement;
       2. any use made by the Customer of the Services or any part of them; and
       3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
    2. Except as expressly and specifically provided in this agreement:
       1. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Myhrtoolkit shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Myhrtoolkit by the Customer in connection with the Services, or any actions taken by Myhrtoolkit at the Customer's direction
       2. 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
       3. the Services are provided to the Customer on an "as is" basis.
    3. Nothing in this agreement excludes the liability of Myhrtoolkit:
       1. for death or personal injury caused by Myhrtoolkit's negligence; or
       2. for fraud or fraudulent misrepresentation.
    4. Subject to clause 12.2 and clause 12.3:
       1. Myhrtoolkit 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
       2. Myhrtoolkit'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 Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13. TERM AND TERMINATION
    1. This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue thereafter unless:
       1. either party notifies the other party of termination in writing, such notice to expire at the end of the Subscription Term in which notice to terminate was given; or
       2. otherwise terminated in accordance with the provisions of this agreement.
    2. During any notice period, it is the Customer’s responsibility to retrieve all the Customer Data. The Customer Data will be irretrievably deleted without notice within such period of time at the end of the notice period as is at Myhrtoolkit’s discretion (normally 30 days). After this time, data may be held for up to a further 30 days on any hard copy backup (disaster recovery only).
    3. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
       1. the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
       2. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
       3. an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
       4. a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
       5. the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
       6. the other party ceases, or threatens to cease, to trade; or
       7. there is a change of control of the Customer within the meaning of section 1124 of the Corporation Tax Act 2010; or
       8. the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
    4. On termination of this agreement for any reason:
       1. all licences granted under this agreement shall immediately terminate;
       2. each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
       3. Myhrtoolkit may destroy or otherwise dispose of any of the Customer Data in its possession.
       4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. FORCE MAJEURE
    1. Myhrtoolkit 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 Myhrtoolkit or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage including an attack by a hacker, a denial of service attack, Virus, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Myhrtoolkit's sub-contractors, provided that the Customer is notified of such an event and its expected duration, and is not required to pay Fees for the duration of the Force Majeure event
15. WAIVER
    1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16. SEVERANCE
    1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. ENTIRE AGREEMENT
    1. 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.
    2. 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.
18. ASSIGNMENT
    1. The Customer shall not, without the prior written consent of Myhrtoolkit, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    2. Subject to clause 3 (Data Protection) and in particular the provisions of clauses 3.5.9 and 3.5.10, Myhrtoolkit 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. On such transfer, or on exchange of contracts which require such transfer, Myhrtoolkit will inform the Customer of the identity of the transferee without undue delay.
19. NO PARTNERSHIP OR AGENCY
    1. 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).
20. THIRD PARTY RIGHTS
    1. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. NOTICES
    1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
       1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
       2. sent by email to the address [email protected]
    2. Any notice or communication shall be deemed to have been received:
       1. if delivered by hand, on signature of a delivery receipt;
       2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
       3. if sent by email, at 9.00 am on the next Business Day after transmission
    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22. GOVERNING LAW AND JURISDICTION
    1. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England and Wales.
    2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).