1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services, as further described in clause 2.2(d).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
Client Data: the data inputted by the Client, Authorised Users, or Pageant on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.
Effective Date: the date of this agreement.
Initial Subscription Term: The period between Start Date and End Date (See Order Form).
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 13.1.
Services: the subscription services provided by Pageant to the Client under this agreement.
Software: the online software applications provided by Pageant as part of the Services.
Subscription Fees: the subscription fees payable by the Client to Pageant for the User Subscriptions, as set out in paragraph 1 of Schedule 1.
Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 9.1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 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.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 A reference to writing or written includes faxes but not e-mail.
1.9 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. User Subscriptions
2.1 Subject to the Client purchasing the User Subscriptions in accordance with clause 3.2 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Pageant hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Client’s internal business operations.
2.2 In relation to the Authorised Users, the Client undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Pageant within 5 Business Days of Pageant’s written request at any time or times.
2.3 The Client shall not:
(a) 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:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties (other than in the ordinary course of its business); or
(d) subject to clause 15.6, 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
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.4 The Client 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, promptly notify Pageant.
2.5 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client, unless expressly agreed in writing by Pageant.
2.6 Any breach by the Client of this clause 2 shall be deemed to be a material breach of this agreement.
3. Your Account and Password
3.1 As part of the registration process for the site you will be given a username and password. You will be asked to change your password. Your password is confidential and you must treat such information as confidential. You must not disclose it to any third party.
3.2 Your username and password are for your sole use only. You must not at any time share your username and/or password with anybody else. Nobody other than you is authorised to use the site using your username and password and you shall be liable for any unauthorised use of your username and/or password.
3.3 We have the right to disable any username or password at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these terms. If we believe, in our sole discretion, that there has been any unauthorised use of your username and password we reserve the right to suspend or terminate your access to the site with immediate effect and to charge you our standard licence fees in respect of any unauthorised, unpaid for use of the site.
3.4 If you know or suspect that anyone other than you knows your username or password, you must promptly notify us at firstname.lastname@example.org.
4.1 Pageant shall, during the Subscription Term, provide the Services to the Client on and subject to the terms of this agreement.
4.2 Pageant shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance the details of which will be notified to you in advance; and
(b) unscheduled maintenance, provided that Pageant has used reasonable endeavours (where practicable) to give the Client notice in advance of such maintenance.
5. Client Data
If Pageant processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and Pageant shall be a data processor and in any such case:
(a) the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the Services and Pageant’s other obligations under this agreement;
(b) the Client shall ensure that the Client is entitled to transfer the relevant personal data to Pageant so that Pageant may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf;
(c) the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) 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.
6. Third Party Providers
7. Pageant’s Obligations
7.1 Pageant undertakes that the Services will be performed with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Pageant’s instructions, or modification or alteration of the Services by any party other than Pageant or Pageant’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Pageant will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Pageant:
(a) does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements; and
(b) 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 Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This agreement shall not prevent Pageant from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4 Pageant warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. Client’s Obligations
The Client shall:
(a) provide Pageant with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Pageant;
in order to provide the Services, including but not limited to Client Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Pageant may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Pageant, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Pageant from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Pageant’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
9. Charges and Payment
9.1 The Client shall pay the Subscription Fees to Pageant for the User Subscriptions in accordance with this clause 9 and the Sales Order Form attached.
9.2 If Pageant has not received payment in accordance with the payment terms attached to the invoice and by the due date set out therein, and without prejudice to any other rights and remedies of Pageant:
(a) Pageant may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Pageant shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling unless otherwise agreed in writing by Pageant;
(b) are, subject to clause 12.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Pageant’s invoice(s) at the appropriate rate.
9.4 Pageant shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.2 at the start of each Renewal Period upon 30 days’ prior notice to the Client and Schedule 1 shall be deemed to have been amended accordingly.
10. Proprietary Rights
10.1 The Client acknowledges and agrees that Pageant and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 Pageant confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 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 implementation of this agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’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.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 This clause 11 shall survive termination of this agreement, however arising.
12. Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of Pageant (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Client of the Services or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use. Pageant shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Pageant by the Client in connection with the Services, or any actions taken by Pageant at the Client’s direction;
(b) 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
(c) the Services are provided to the Client on an \”as is\” basis.
12.3 Nothing in this agreement excludes the liability of Pageant:
(a) for death or personal injury caused by Pageant’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
(a) Pageant 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
(b) Pageant’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
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term, unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 13 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(d) to clause 13.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) 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;
(c) Pageant may destroy or otherwise dispose of any of the Client Data in its possession unless Pageant receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Pageant shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Pageant in returning or disposing of Client Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. Force Majeure
Pageant shall have no liability to the Client 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 Pageant or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
15.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.2 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.3 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.
15.4 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.
15.5 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.
15.6 The Client shall not, without the prior written consent of Pageant, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15.7 Pageant 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.
15.8 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).
15.9 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.
15.10 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
15.11 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
16. Governing Law & Jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle such dispute or claim.
17. Subscriptions to Data Products
17.1 Subscriptions to Data Products shall be delivered exclusively online.
17.2 For each Data Product subscription you have purchased and for the duration of that subscription we grant you one non-exclusive non-transferable licence to permit an Authorised User to access and use the Data of that particular Product in accordance with these Conditions and the Standard Terms.
17.3 Without prejudice to the provisions of the Standard Terms, each Authorised User is permitted to access, print, reproduce, display, download or store the Data to the extent reasonably necessary for the purpose of their own personal use within the course of your business which may include the performance of Data aggregation, analysis and interpretation.
17.4 The results of such aggregation, analysis and interpretation may be used and disclosed in reports and presentations made by the Authorised User on your behalf provided that, where our Data or specific fund information remains identifiable or can be readily extracted, we and the relevant Brand are acknowledged as the source of the original data and such reports and presentations are only distributed or shown internally or to accredited investors, hedge fund professionals or, in the case of US residents, Qualifying Persons.
17.5 Authorised Users may use the Data as an input to internal or proprietary industry specific data processing applications provided that by doing so the Data does not become available in unmodified form or readily extractible by any persons other than Authorised Users
17.6 Authorised Users shall not disclose, disseminate, distribute or make available unmodified Data or Data which has been modified but remains identifiable or readily extractible to any other person in any way other than:
(a) to persons within your immediate organisation in which case such persons shall be under the same restrictions as to use as the Authorised User; or
(b) in reports and presentations made on your behalf provided that these are only distributed or shown internally or to accredited investors, hedge fund professionals or, in the case of US residents, Qualifying Persons,
in each case provided that: no more than 5% of the available Data in respect of each Product is so disclosed; and (ii) we and the relevant Brand are acknowledged as the source of the Data.
17.7 All other use is expressly prohibited without our prior written consent
17.8 We reserve the right to amend the terms of your licence from time to time in accordance with clause 17 of the Standard Terms.
17.9 The Data Products contain some personal information (as defined by the General Data Protection Regulation – GDPR). The Client is responsible for having a lawful basis for processing this personal data.