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Terms of Service
These Terms of Service were last published on 22nd April 2024. If you previously accepted an earlier version of our Terms of Service, the Terms of Service set out below completely replace that earlier version. Your continued use of the VettingGateway Services on or after 22nd April 2024 constitutes your acceptance of the Terms of Service set out below.
These Terms of Service refer to the Data Processing Schedule set out at www.vettinggateway.com/data-processing which together with these Terms of Service form the entire agreement between you and VettingGateway (“Agreement”) and constitute a binding legal agreement between you and VettingGateway. If you do not agree to be bound in this way you should not create an account or use the Services.
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1.0 Interpretation
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1.1 In this Agreement the capitalised terms set out below shall have the following meanings:
“Background-Check Regulations” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to background-checking in the industries or countries in which the Client operates and/or in which the Client undertakes background-checks;
“Basic Data Storage Plan” means the storage of Client Personal Data by VettingGateway for a period of twelve (12) months from the Data Storage Start Date;
“Charge(s)” means VettingGateway’s charges for the Services as applicable to the Subscription together with such other additional charges as may be agreed between VettingGateway and the Client from time to time, including charges for any Marketplace purchases made by the Client through the Software;
“Client” means the person or firm who receives the Services from VettingGateway;
“Client Personal Data” means any personal data related to any User which VettingGateway processes on behalf of the Client in connection with the Services;
“Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to Messages in the countries in which the Client operates and/or in which any User or any recipient of any Message is located;
“Commencement Date” means (in relation to a Subscription):
(a) in the case of the “Starter” licence tier, the date when the Client first creates an account on the Site; or
(b) in the case of the “Business”, “Enterprise” and “Enterprise Hub” licence tiers, the date when the Client’s first Subscription invoice is raised by VettingGateway.
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 7;
“Data Controller” shall have the meaning set out in the Data Processing Schedule;
“Data Processor” shall have the meaning set out in the Data Processing Schedule;
“Data Processing Schedule” means the addendum constituting part of this Agreement which is set out at www.vettinggateway.com/data-processing;
“Data Protection Laws” means:
(a) in relation to the Client all data protection and/or privacy laws, principles and agreements applicable to the country in which the Client is located and all countries in which any User or any recipient of any Message is located; and
(b) in relation to VettingGateway all data protection and/or privacy laws, principles and agreements applicable to the United Kingdom;
“Data Storage Start Date(s)” means for each User who is undergoing background-checks the latter of:
(a) the date on which the User first creates an account on the Site; or
(b) the date on which that same User first submits their completed background-checking data to the Client;
“Employment Laws” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to employment in the countries in which the Client operates and/or in which any User or any recipient of any Message is located;
“Extended Data Storage Plan” means the storage of Client Personal Data by VettingGateway for a period of five (5) years from the Data Storage Start Date;
“Group Company” means in relation to VettingGateway any holding company and/or any subsidiary company as defined by section 1159 Companies Act 2006;
“Initial Term” means either:
(a) for Clients paying for their Subscription by credit or debit card payment, the period of one (1) calendar month from the Commencement Date; or
(b) for Clients paying for their Subscription by invoice payment, the period of twelve (12) calendar months from the Commencement Date;
“Intellectual Property” means any and all patents, copyrights (including future copyrights), design rights, trademarks, Trade Mark, service marks, domain names, trade secrets, know-how, database rights, and all other intellectual property rights, whether registered or unregistered, and including applications for any of the foregoing and all rights of a similar nature which may exist anywhere in the world and provided by or owned by VettingGateway or any Group Company;
“Marketplace” means the Software-enabled marketplace where the Client can purchase third party background-checks on a reducing credit-balance basis for consumption as part of the Services.
“Materials” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to VettingGateway but for the avoidance of doubt does not include material belonging to the Client;
“Messages” means any communications and content sent by the Client using the Software to any User or third party in connection with the Services, including, but not limited to, communications and content sent by email and SMS;
“Renewal Period” means each successive period of:
(a) for Clients paying for their Subscription by credit or debit card payment, one (1) calendar month from expiry of the Initial Term which shall automatically renew on each monthly anniversary of the Commencement Date unless the Client has given prior notice of termination in accordance with clause 10.2 hereunder; or
(b) for Clients paying for their Subscription by invoice payment, twelve (12) calendar months from the date of expiry of the Initial Term which shall automatically renew on each annual anniversary of the Commencement Date unless the Client has given prior notice of termination in accordance with clause 10.2 hereunder ;
“Services” means the provision of the VettingGateway Software for use by the Client and by any User according to the Subscription as set out on the Site at the initial date of purchase in all material respects, together with such other services agreed between VettingGateway and the Client from time to time or ancillary to the Services;
“Site” means VettingGateway’s website at www.vettinggateway.com;
“Software” means VettingGateway’s background-checking workflow and data processing software, including its Marketplace;
“Subscription” means the licence tier (i.e. “Starter”, “Business”, “Enterprise” or “Enterprise Hub”) selected by the Client in conjunction with the Client’s selection of the quantity of licences, the data storage plan and the purchase payment method (as applicable);
“Trademark” means the ‘VettingGateway’ registered trademark and logo and any future registration of any similar mark or branding of VettingGateway or of any Group Company or third parties provided or used as a part of these Services or any application for registration anywhere in the World;
“User” means any user of the Software including (but not limited to) any applicant who is invited by the Client to undergo background-checks as part of the Services;
“VettingGateway” means IDGateway Limited, a company incorporated in England and Wales under registration number 07918726, whose registered office is at Athenia House, 10-14 Andover Road, Winchester, Hampshire SO23 7BS;
“Working Day” means Monday to Friday excluding statutory holidays in the United Kingdom; and
“Working Hours” means 9.00am to 5.00pm on a Working Day in the United Kingdom.
1.2 Subject to clause 14, any reference in these terms to ‘writing’ or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.
1.3 Except where the context requires otherwise: the singular includes the plural and vice versa; a reference to one gender includes all genders; and words denoting persons include firms and corporations and vice versa.
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2.0 Supply of the Services
2.1 VettingGateway shall provide the Services to the Client as applicable to the Subscription, for the term set out in clause 10.2 and in accordance with this Agreement. The Client may purchase additional Services at any time. Additional purchases of Services made through the Software shall run coterminous with the Subscription. The Client may only have one type of Subscription tier at any one time. Any alterations made to the Subscription tier shall apply to all active licences.
2.2 VettingGateway shall ensure that Clients shall have access to VettingGateway’s support team, where support shall be provided in accordance with the particulars applicable to the Client’s chosen Subscription tier.
2.3 VettingGateway uses third parties to host the Software and all Client Personal Data. The Client hereby consents to VettingGateway using data centres located in the United Kingdom and/or the European Union (EU) for all such hosting.
2.4 VettingGateway shall undertake scheduled and planned maintenance of the Software or the Site outside of Working Hours in order to minimise disruption to the Services provided to the Client. Such scheduled and planned maintenance shall take place on a Tuesday, between the hours of 1900 and 2100 in the UK.
2.5 Notwithstanding the provisions of clause 2.4, it may be necessary from time to time for VettingGateway to temporarily suspend the Services in whole or in part to carry out unscheduled maintenance of the Software or the Site. VettingGateway shall provide the Client with at least forty-eight (48) hours’ prior notice of any such suspension of the Services, via the Software or the Site or such other media as VettingGateway deems appropriate in its discretion.
2.6 VettingGateway reserves the right to temporarily suspend the Services in whole or in part at any time to carry out urgent and/or unavoidable maintenance or repair work. Services may also be suspended in whole or in part where VettingGateway is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority. VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise in such circumstances.
2.7 VettingGateway reserves the right to amend the Software, Site and Services at any time if necessary to comply with any applicable law or regulatory requirement.
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3.0 Charges, Invoicing and Payment
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3.1 In consideration of VettingGateway providing the Services, the Client shall pay the Charges in accordance with this clause 3.
3.2 The Client shall pay the Charges in pound sterling (GBP) as set out on the VettingGateway Site from time to time. Except as set-out in clause 11.2.2, Subscription Charges are strictly non-refundable. Marketplace Charges may vary from time to time due to the tariffs set by the third party suppliers.
3.3 Marketplace credits are valid for the period set out on the Site from time to time. The validity period commences from the date of purchase and credits shall automatically expire (and shall no longer be available for the Client’s use) following the end of the relevant validity period. VettingGateway reserves the right to cancel and refund unused credits if any Marketplace supplier makes a material change to their service which is detrimental either to the Client or to VettingGateway or for any other reason. Subject to VettingGateway’s right to cancel and refund in the aforementioned scenario, Marketplace Charges are strictly non-refundable.
3.4 The Charges, the nature of any Subscription tier and/or payment terms may be subject to change at VettingGateway’s discretion. Any such change(s) shall apply annually on 1st April following the provision by VettingGateway to the Client of not less than thirty (30) days’ prior notice. If the Client gives notice of any objection to such change within the thirty (30) day notice period, either party may terminate this Agreement by giving the other a further thirty (30) days’ notice in writing.
3.5 All Charges quoted to the Client for the provision of the Services are exclusive of any applicable VAT or any similar sales tax(es), for which the Client shall be additionally liable at the applicable rate.
3.6 VettingGateway shall invoice the Client as follows:
3.6.1 Where the Client purchases a Subscription by invoice payment, VettingGateway shall invoice any fixed Charges to the Client annually in advance on the Commencement Date of the Initial Term and then annually in advance on each anniversary thereafter.
3.6.2 Where the Client purchases a Subscription by credit or debit card payment, VettingGateway shall charge any fixed Charges to the Client monthly in advance on the Commencement Date of the Initial Term and then monthly in advance thereafter.
3.6.3 VettingGateway shall invoice any Marketplace Charges to the Client on the date of purchase.
3.7 Where the Client operates a purchase order (“PO”) based accounts payable system it shall provide to VettingGateway valid and complete PO information acceptable to VettingGateway at the point of placing each order for the Services, together with valid and complete billing details. In the event that VettingGateway does not receive such PO or billing details in accordance with this clause 3.7, VettingGateway reserves the right to delay the commencement of the provision of the Services until such information is forthcoming from the Client.
3.8 Except in the case of invoices which are settled by credit or debit card, the Client shall pay all invoices raised by VettingGateway within 30 days of the date of each invoice to a bank account nominated in writing by VettingGateway from time to time. No payment shall be deemed paid until VettingGateway receives payment in cleared funds from the Client.
3.9 If the Client fails to pay VettingGateway any Charges due pursuant to this Agreement, VettingGateway shall be entitled to: (a) charge interest (both before and after any judgement) on the outstanding amount at the rate of 4% above the base rate of HSBC Bank plc from time to time, accruing on a daily basis from the due date until the outstanding amount is paid in full; and (b) recover from the Client any amount incurred by VettingGateway utilising any third party debt agency due to the Client’s failure to pay any Charges outstanding.
3.10 If the Client fails to pay any sums due to VettingGateway by the date each payment falls due, VettingGateway shall send payment reminders, as appropriate, to the Client. If payment remains outstanding 10 (ten) days from the date on which a payment reminder was sent to the Client, VettingGateway reserves the right to:
3.10.1 disable the account; and
3.10.2 temporarily suspend the provision of the Services to the Client until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services shall be reinstated. Before reinstating the Services, VettingGateway may require the Client to set up a credit or debit card for payment of all future Charges.
3.11 In the event of an invoice being disputed by the Client on valid and reasonable grounds, VettingGateway may agree to continued provision of the Services whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 12.1, provided that any undisputed portion of any relevant invoice is paid. If the Client disputes any portion of an invoice based upon usage of the Services, the Client accepts that VettingGateway’s records of such usage are correct unless proven otherwise by an independent expert.
3.12 Where the Client adds licences to its Subscription during the Initial Term or during any Renewal Period, the additional Subscription Charges shall be charged pro-rata up to the expiry of the then current Initial Term or Renewal Period.
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4.0 Data protection and Data Storage
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4.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Schedule. This clause 4 and the Data Processing Schedule acts in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws.
4.2 The Client is the Data Controller and VettingGateway is the Data Processor in respect of the Client Personal Data that VettingGateway processes in the course of providing Services. Client Personal Data is derived from data provided or sourced by the Client and is not checked for accuracy or completeness by VettingGateway. Accordingly, VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise as a result from the accuracy, content or use of such Client Personal Data, provided that any such use by VettingGateway is in accordance with its obligations under this Agreement.
4.3 The Client grants VettingGateway and any Group Company the prior, general right to process Client Personal Data as necessary to provide the Services in a manner that is consistent with this Agreement. The Client shall be responsible for the accuracy, content and use of the Client Personal Data.
4.4 In relation to the Client Personal Data, the Data Processing Schedule sets out the scope, nature and purpose of processing by VettingGateway, the duration of the processing and the types of personal data and categories of data subject.
4.5 In accordance with the Data Processing Schedule and its General Data Protection Policy, VettingGateway shall not use any Client Personal Data except in connection with the provision of Services:
4.5.1 as set out in this Agreement; or
4.5.2 as required by law, regulation or regulatory body or any court of competent jurisdiction.
4.6 In its capacity as the Data Controller the Client represents and warrants that:
4.6.1 it has obtained and shall continue to obtain the necessary appropriate permissions and consents to enable lawful transfer of the Client Personal Data to VettingGateway for processing pursuant to clause 4.3 for the duration and purpose of this Agreement;
4.6.2 it has registered with an appropriate data protection authority and shall not use the Services at any time during which it does not have an appropriate and valid data protection registration;
4.6.3 it shall take appropriate organisational and technical measures against unauthorised or unlawful processing;
4.6.4 it shall obtain where appropriate express, specific and informed consent when obtaining personal data from data subjects.
4.7 Data Storage Plans
4.7.1 VettingGateway offers its Clients the choice of two data storage plans for the retention of Client Personal Data:
4.7.1.1 The Basic Data Storage Plan; and
4.7.1.2 The Extended Data Storage Plan
4.7.2 Basic Data Storage Plan
4.7.2.1 VettingGateway shall automatically enrol the Client onto the Basic Data Storage Plan and whilst this Basic Data Storage Plan persists the Client Personal Data related to any new Data Storage Start Dates which are created shall be stored in the Software for twelve (12) months from each Data Storage Start Date. The Client Personal Data related to each Data Storage Start Date shall then be automatically deleted twelve (12) months from each Data Storage Start Date.
4.7.3 Extended Data Storage Plan
4.7.3.1 If the Client wishes to store Client Personal Data in the Software for a period in excess of the Basic Data Storage Plan, the Client must purchase the Extended Data Storage Plan. Whilst this Extended Data Storage Plan persists the Client Personal Data related to any new Data Storage Start Dates which are created shall be stored in the Software for sixty (60) months from each Data Storage Start Date. The Client Personal data related to each Data Storage Start Date shall then be automatically deleted after sixty (60) months from each Data Storage Start Date.
4.7.3.2 The Client shall pay VettingGateway’s applicable Charge for the provision of the Extended Data Storage Plan. To be eligible for enrolment and to remain subject to the Extended Data Storage Plan, the Client must have at least one (1) active “Enterprise” or “Enterprise Hub” licence within its Subscription and must be paying annually in advance for its Subscription. Subsequent Charges for the provision of the Extended Data Storage Plan shall be invoiced automatically in advance on an annual basis unless notice to terminate the Subscription is received in accordance with this Agreement.
4.7.3.3 The Extended Data Storage Plan shall only apply to Client Personal Data related to Data Storage Start Dates created on the date of purchase of the Extended Data Storage Plan and for a period of twelve (12) months thereafter. The Extended Data Storage Plan shall not apply retrospectively to Client Personal Data stored in the Software prior to the date of purchase of the Extended Data Storage Plan. (Any such Client Personal Data shall remain subject to the Basic Data Storage Plan.)
4.7.3.4 If the Client wishes to cancel its Extended Data Storage Plan, the Client must first contact VettingGateway using the instructions provided within the Software. Cancellation of the Extended Data Storage Plan shall only take effect on the next anniversary of the start date of the Extended Data Storage Plan. For the avoidance of doubt, all Client Personal Data related to Data Storage Start Dates prior to the effective date of cancellation shall continue to be stored in accordance with the Extended Data Storage Plan, notwithstanding its upcoming cancellation, whereas all Client Personal Data related to Data Storage Start Dates created after the effective date of cancellation of the Extended Data Storage Plan shall be stored in accordance with the Basic Data Storage Plan.
4.7.3.5 Non-payment by the Client of VettingGateway’s applicable Charge for the provision of the Extended Data Storage Plan, when due, shall be deemed as a cancellation of the Extended Data Storage Plan which may be enacted by VettingGateway with immediate effect and without further notice to the Client.
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5.0 Client’s Obligations
5.1 The Client warrants that it shall not:
5.1.1 use the Services in any way so as to bring the Services or VettingGateway into disrepute;
5.1.2 resell the Services (or any part of them) without the prior written consent of VettingGateway;
5.1.3 use the Services to send Messages which may be considered by the recipient to be advertising, promotional material, ‘junk mail’, or ‘spam’;
5.1.4 use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person’s privacy;
5.1.5 use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects;
5.1.6 misuse the Software or the Site by introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
5.1.7 attempt to gain unauthorised access to the Software or the Site, the server on which the Software or the Site are stored or any server, computer or database connected to the Software or the Site;
5.1.8 attack the Software or the Site via a denial-of-service attack or a distributed or malicious denial-of service attack;
5.1.9 conduct vulnerability scanning, or any form penetration testing against the Software or the Site including any application servers relating thereto; or
5.1.10 permit any person to access the Services for any unauthorised purpose that would constitute a breach of this Agreement.
5.2 The Client agrees that it shall:
5.2.1 comply and ensure that its use of the Services complies with all Codes and Employment Laws applicable to the country in which the Client is registered and its Users and any recipient of any Message reside;
5.2.2 remain responsible for assessing the suitability of background-check templates and/or modifying them to comply with any applicable Background-Check Regulations.
5.2.3 provide all reasonable assistance required by VettingGateway to enable VettingGateway to comply with any requirements or conditions imposed by such Codes or Employment Laws;
5.2.4 provide VettingGateway, any relevant authority or regulator of the Codes or Employment Laws with all information or material reasonably requested in order to carry out any investigation in connection with the Client’s or a User’s use of the Services;
5.2.5 use commercially reasonable efforts to prevent unauthorised access to or use of the Services and notify VettingGateway promptly of any such unauthorised access or use;
5.2.6 keep its passwords and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify VettingGateway immediately if it believes that such information is no longer secret; and
5.2.7 be solely responsible for all activities resulting from use of the Client’s passwords or account and for all use of the Services and Materials under its name.
5.3 VettingGateway accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise as a result of any failure on the Client’s part to comply with the its obligations in this clause 5.
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6.0 Intellectual Property
6.1 All rights in the Intellectual Property subsisting in the Software and/or Materials, including any supporting software and documentation, are the property of VettingGateway.
6.2 VettingGateway hereby grants to the Client a personal, non-exclusive and non-transferable licence to use the Intellectual Property and/or Materials for the duration of the Initial Term and any Renewal Period strictly in accordance with this Agreement only.
6.3 The Client shall only use the Intellectual Property and/or Materials or any VettingGateway branding in the form stipulated by VettingGateway from time to time and shall observe all directions given by VettingGateway as to colours and size and representations of the Trade Mark and branding.
6.4 The Client shall not either during the term or after the expiry of this Agreement permit or cause to occur any infringement of VettingGateway’s rights in the Intellectual Property and/or Materials. Where the Client either suspects or is aware of any breach of VettingGateway’s rights in the Intellectual Property it shall be under a duty to inform VettingGateway of such breach immediately.
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7.0 Confidentiality
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7.1 VettingGateway and the Client each undertake that, except as provided by clause 7.2 hereunder, or as authorised in writing by the other party, they shall, at all times during the continuance of the Agreement and after its termination:
7.1.1 keep confidential all Confidential Information;
7.1.2 not disclose any Confidential Information to any other party;
7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
7.1.5 ensure that none of their directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that party, would be a breach of the provisions of clauses 7.1.1 to 7.1.4 above.
7.2 Either Party may disclose any Confidential Information to:
7.2.1 any sub-contractor or supplier of that party;
7.2.2 any governmental or other authority or regulatory body; or
7.2.3 any employee or officer of that Party or of any of the persons, parties or bodies set-out at clauses 7.2.1 and 7.2.2;
to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under clause 7.2.2 or any employee or officer of any such body) shall obtain from the other party a written confidentiality undertaking from the party in question. Such undertaking should be as closely as practicable mirror the terms of clause 7 of this Agreement, in order to keep the Confidential Information confidential and to ensure it is used only for the purposes for which the disclosure is made.
7.3 Either Party may use any Confidential Information for any purpose, or disclose it to any other person, to the extent that at the date of this Agreement, or at any time after that date it is (or it becomes) public knowledge through no fault of that party. In making such use or disclosure, that party must not disclose any part of the Confidential Information that at that time is not public knowledge.
7.4 The provisions of clause 7 of this Agreement shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
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8.0 Limitation of Liability and Indemnity
8.1 This clause 8 sets out the entire liability of either party to the other (including any liability for the acts or omissions of a party’s employees, agents, consultants, and subcontractors) in respect of:
8.1.1 any breach of this Agreement;
8.1.2 the use of the Services or any part of them; and
8.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2 Without limiting a party’s express warranties and obligations hereunder, and except as expressly provided herein, the Services are provided “as is” and VettingGateway makes no warranty of any kind, whether express, implied, statutory, or otherwise, and specifically disclaims all implied warranties including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement to the fullest extent permitted by law.
8.3 Nothing in this Agreement limits or excludes the liability of either party:
8.3.1 for death or personal injury resulting from its negligence; or
8.3.2 for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;
8.3.3 for any other liability which cannot be excluded by applicable law.
8.4 The Client shall indemnify VettingGateway against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by VettingGateway arising out of the Client’s use of the Software or the Client’s receipt of the Services or the Client’s breach of the Agreement. This indemnity shall in total be limited to the Charges paid or payable by the Client during the previous 12 months.
8.5 Subject to clauses 8.3, 8.4, 8.6, 8.7 and where expressly stated:
8.5.1 neither party shall be liable to the other under this Agreement for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
8.5.2 VettingGateway’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution arising in connection with the performance, or contemplated performance, of this Agreement shall in total be limited to the greater of either (i) the Subscription Charges paid or payable by the Client during the previous 12 months or (ii) such proportion as may be reasonably decided by VettingGateway of any claim paid-out under VettingGateway’s applicable insurance policies from time to time, whereby the Client is a relevant party to such claim.
8.6 VettingGateway shall defend at its own expense any claim brought against the Client alleging that its possession and/or use of Software and/or Materials (or any part thereof) in accordance with its rights under this Agreement infringes a third party’s rights to Intellectual Property (“Intellectual Property Claim”) and VettingGateway shall indemnify and hold harmless the Client from and against any damages incurred by or awarded against the Client or agreed to in settlement of an Intellectual Property Claim provided that the Client:
8.6.1 provides VettingGateway with prompt written notice of the Intellectual Property Claim, providing as much detail as is reasonably possible and practicable;
8.6.2 does not make any admission of liability and does not reach any agreement or compromise with respect to the Intellectual Property Claim without the prior written consent of VettingGateway (such consent not to be unreasonably delayed, conditioned or withheld);
8.6.3 provides VettingGateway and its professional advisers with reasonable assistance and access (at reasonable times and on reasonable notice) in respect of the Intellectual Property Claim including, but not limited to, the disclosure of all facts and documents and access to any and all materials and personnel relating to the Intellectual Property Claim; and
8.6.4 fully cooperates with any and all reasonable requests of VettingGateway and takes such actions as VettingGateway may reasonably require in order to avoid, dispute, defend, compromise, or settle the Intellectual Property Claim.
8.7 As a condition of the foregoing indemnification obligations in this clause 8: (a) the indemnified party (“Indemnified Party”) shall promptly notify the indemnifying party (“Indemnifying Party”) of any claim in accordance with indemnity terms in this clause 8 (“a Claim”); provided, however, that the failure to give prompt notice shall not relieve the Indemnifying Party of its obligations herein, save to the extent that the Indemnifying Party was materially prejudiced by such failure; (b) the Indemnifying Party shall have the sole authority to defend or settle a Claim; and (c) the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defence of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not settle any Claim for which it has an obligation to indemnify under this clause 8, admit liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably delayed, conditioned or withheld.
8.8 Nothing in this clause 8 shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a Claim under this clause 8.
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9.0 Force Majeure
9.1 Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of Charges) under this Agreement cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, civil unrest, failure of public power supplies, third party cyber interference or attacks , failure of communication facilities, unavailability of the internet. However, if such circumstances persist for more than fourteen (14) days, the non-defaulting party may terminate this Agreement and all Charges due to VettingGateway up to the date of termination shall become immediately due and payable.
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10.0 Term, Suspension and Termination
10.1 This Agreement shall come into force on the Commencement Date and shall govern both the provision of the Services by VettingGateway and the use of the Services by the Client until terminated in accordance with this clause 10.
10.2 VettingGateway shall provide the Services to the Client as applicable to the Subscription purchased by the Client through the Software for the Initial Term and for any Renewal Period. Upon expiry of the Initial Term, the Subscription shall automatically renew for successive Renewal Periods, unless a party terminates by giving at least thirty (30) days’ written notice prior to expiry of the Initial Term or any Renewal Period.
10.3 VettingGateway may immediately and without notice terminate or suspend this Agreement or the provision of Services if:
10.3.1 the Client’s account remains inactive for a period of 12 months or more; or
10.3.2 the Client fails to pay any Charges due under this Agreement on the due date for payment; or
10.3.3 the Client becomes subject to any of the events listed in clauses 10.4 or VettingGateway reasonably believes that the Client is about to become subject to any of them,
any suspension of the Services under this clause 10.3 shall endure until the circumstances giving rise to the suspension cease to exist or until this Agreement is terminated by either party. In the event that VettingGateway suspends this Agreement or the provision of Services under clause 10.3 the Client shall pay all Charges owing or due for the period when the Services are suspended.
10.4 Either party may terminate this Agreement immediately if:
10.4.1 either party commits a material breach of this Agreement and (if capable of remedy) the breaching party fails to remedy the breach within thirty (30 ) days after being required by written notice so to do; or
10.4.2 enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors; or
10.4.3 the Client is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors; or
10.4.4 the Client convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Client, notice of intention to appoint an administrator is given by the Client or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Client or for the granting of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client.
10.5 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under this Agreement and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in this Agreement.
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11.0 Effects of termination
11.1 Where a Subscription is terminated by either party before the end of the Initial Term or then-current Renewal Term (except where terminated by the Client due to a material breach of this Agreement by VettingGateway) all remaining Charges for the Initial Term or then-current Renewal Term including any outstanding Marketplace Charges (as applicable) shall be immediately payable.
11.2 Following termination:
11.2.1 all Services purchased by the Client shall no longer be available to the Client, including any unused items purchased by the Client in the Marketplace;
11.2.2 in the event that this Agreement is terminated by the Client in accordance with clause 10.4 above, VettingGateway shall refund to the Client, on a pro-rata basis, that proportion of the Subscription Charges that relate to the remaining period of the Services for which the Client has paid but shall not receive or use;
11.2.3 VettingGateway shall have no obligation to retain any Client Personal Data. If the Client wishes to export any Client Personal Data, it must do so prior to termination in accordance with the functions available within the Software. Where the Client requires VettingGateway to export any Client Personal Data on a customised basis, then VettingGateway shall be entitled to levy a charge for this additional service, the amount of which VettingGateway shall advise the Client at the time the Client makes such request;
11.2.4 VettingGateway may retain Client Personal Data for statistical and analytical purposes, subject always to such Client Personal Data containing no personally identifiable information and in any event, in accordance with applicable Data Protection Laws;
11.2.5 the Client shall immediately cease using the Intellectual Property and the Materials;
11.2.6 any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.
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12.0 Disputes
12.1 In the event of any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), the parties shall within ten (10) days of a written request from a party to the other, meet in a good faith effort to resolve the dispute without recourse to proceedings. If the dispute is not resolved as a result of such meeting, any party may (at such meeting or within fourteen (14) days from its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor (the “Neutral Adviser”). If the parties are unable to agree on the appointment of a Neutral Adviser or the Neutral Adviser is unable or unwilling to act, either party may within fourteen (14) days from the date of the proposal apply to appoint a different Neutral Adviser. The parties shall within fourteen (14) days of the appointment of the Neutral Adviser meet with him or her in order to agree a programme for the exchange of any relevant information and the structure to be adopted for the negotiations. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings. If the parties accept the Neutral Adviser’s recommendations or otherwise reach agreement on the resolution of the disputes, such agreement shall be set down in writing and, when signed by their duly authorised representative, shall be binding on the parties. Failing agreement, either of the parties may invite the Neutral Adviser to provide a non-binding opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings commenced pursuant to this Agreement without the prior written consent of the parties.
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13.0 Assignment
13.1 Save that VettingGateway may assign the whole or any part of this Agreement to a Group Company, neither party to this Agreement shall assign the whole or any part of this Agreement to any other party without the prior written consent of the other party, such consent not to be unreasonably delayed, conditioned or withheld.
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14.0 Communication & Notices
14.1 Notices or proceedings relating to a dispute shall be given by first-class post addressed to the other party at its registered office or principal place of business. Other notices required to be given by either party to the other under this Agreement may be given in writing by post or by email. Where such notice is given by VettingGateway to the Client by email it shall be sent to the registered email address of the primary User of the Client.
14.2 Any such notice shall be deemed to have been received:
14.2.1 if delivered personally, at the time of delivery; or
14.2.2 if sent by post within the United Kingdom, two (2) Working Days after posting; or
14.2.3 if delivered by email, at the time of delivery; or
14.2.4 if sent to any other country within five (5) Working Days after posting; provided that if deemed receipt occurs before 9am or after 5pm on a Working Day then the notice shall be deemed to have been given on the next Working Day.
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15.0 General
15.1 Except where otherwise expressly stated herein, this Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of this Agreement. In the event of any conflict between this Agreement and the terms contained in any other document, this Agreement shall prevail.
15.2 VettingGateway may at its reasonable discretion, change or modify this Agreement or Services to comply with a change in any applicable law upon giving the Client thirty (30) days’ notice of the same either by email or by notification on the Software or the Site.
15.3 Each party warrants to the other that it has the power and authority:
15.3.1 to enter into this Agreement; and
15.3.2 to perform its obligations under this Agreement.
15.4 This Agreement shall not be deemed to create any partnership or employment relationship between the parties.
15.5 Nothing contained in this Agreement is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.
15.6 No act, failure or delay to act, or acquiescence by VettingGateway or the Client in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right or in any way prejudice any right of VettingGateway or the Client under this Agreement, and no waiver by VettingGateway of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation (whether partly or wholly) of any of the terms of this Agreement shall be valid only if in writing and signed by or on behalf of VettingGateway and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of this Agreement.
15.7 If any provision of this Agreement is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
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16.0 Jurisdiction and Applicable Law
16.1 Each party agrees that the Agreement is subject to the applicable law of the United Kingdom. Further, the courts of the United Kingdom shall have exclusive jurisdiction to determine any disputes arising under this Agreement.