These terms of service are the standard terms which apply to provision of the Services described below. By confirming your acceptance of these terms of services and any Customer Order Confirmation and by purchasing, using or otherwise accessing the Services provided by LMC, the Customer accepts and agrees to be bound by the terms of this Agreement.  

Background

(A) LMC provides software with the aim of facilitating care homes, homecare agencies, supported living providers and health care professionals to provide care to their patients, which it makes available to customers on a licence and consumption-based subscription.

(B) The Customer wishes to use LMC's software and services in its care operations.

(C) LMC has agreed to provide and the Customer has agreed to subscribe to LMC's software and services subject to the terms and conditions of this Agreement.

‍

Agreed terms

1. Interpretation

1.1

The definitions and rules of interpretation in this clause apply in this Agreement.

Agreement: the terms of service set out here, together with the terms contained in any Customer Order Confirmation to which the Customer and LMC are party.

Availability Credits: 1/30th of the Subscription Fees paid by the Customer for the relevant month in which LMC fails to meet the Availability SLA and which is subject to clause 4.

Availability SLA: 99.5% uptime per calendar month.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.

Confidential Information: information in whatever form (including without limitation, in writing, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of either party, or relating to Patients, for the time being confidential to that party and trade secrets including, without limitation, technical data and know-how relating to the business of that party or any of its suppliers, customer, agents, distributors, shareholders, management or business contacts, including (but not limited to) information that LMC creates, develops, received or obtains in connection with the provision of the Services, whether or not such information (if in anything other than oral form) is marked confidential.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures:  as defined in the Data Protection Legislation.

Customer: the entity set out in any Customer Order Confirmation or, where no Customer Order Confirmation is relevant, the organisation that you represent in agreeing to the Agreement.

Customer Data: the data inputted by the Customer, Customer Users, third parties instructed by the Customer, or LMC on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services, including without limitation all Personal Data of any Patient.  

Customer Order Confirmation: means the interface for the Services, the online ‘checkout page’, order form or other document where Customer details, initial term, fees/purchased package and/or any other additional special terms are detailed.

Customer Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Platform.  

Data Protection Legislation:  all applicable data protection and privacy legislation in force from time to time including the EU GDPR  (the General Data Protection Regulation (EU) 2016/679)), the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data. 

Effective Date: the date of this Agreement.

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.

Patient: a Patient receiving care within a care facility owned and/or otherwise operated by the Customer.

Platform: the software platform made available to the Customer by LMC online to the Customer from time to time.

Services: the licencing of the Software and provision of services as more detailed in each Customer Order Confirmation by LMC to the Customer, on the terms of this Agreement, or as otherwise mutually agreed in writing from time to time.

Software: the online software applications provided by LMC as part of the Services, which are provided and developed with the aim of facilitating care homes, homecare agencies, supported living providers and health care professionals to provide care to their patients.

Subscription Fees: the subscription fees payable by the Customer to LMC for the Services, as set out in the Customer Order Confirmation, including without limitation any fixed subscription fees, and any variable subscription fees.  

Subscription Term: the term of this Agreement as agreed between the parties and set out in the Customer Order Confirmation.

Supplier and LMC: LMC Software Ltd, a company registered in England and Wales under company number 10904934 whose registered office is at Lion Court, 25 Procter Street, London, United Kingdom, WC1V 6NY.

Third Party Provider: a third party responsible for the supply of products and/or services to the Customer, whose products and/or services are provided independently of LMC and subject to separate contractual terms which LMC is not a party to.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.  

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.

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

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.

A reference to writing or written includes email.

References to clauses are to the clauses of this Agreement.

The headings in this Agreement are for convenience only and shall not affect its interpretation.

This Agreement is referenced in LMC’s Standard Terms and Conditions [HYPERLINK] as ‘Bespoke Terms’. This Agreement overrides LMC’s Standard Terms and Conditions and applies in place of LMC’s Standard Terms and Conditions to the relationship between LMC and the Customer in respect of the scope of the Services.

2. Software and Services

2.1

The Customer appoints LMC to provide it with the Services, in consideration for which the Customer agrees to compensate LMC, in each case as described in each Customer Order Confirmation. The Customer agrees that LMC is appointed solely to provide the Services.  

2.2

The Customer confirms that it is a provider of social care.

2.3

LMC accepts its appointment by the Customer, and shall use all reasonable endeavours to provide the Services:

(a) in a timely, professional and communicative manner;

(b) with a degree of skill, care, and prudence as would reasonably be expected from a professional company providing software services to business clients; and

(c) in compliance with applicable laws and regulations.

2.4

LMC warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

2.5

The commitment at clause 2.2 shall not apply to the extent any non-conformance is caused by use of the Services contrary to LMC's instructions, or modification or alteration of the Services by any party other than LMC or LMC's duly authorised contractors or agents.  

2.6

Subject to the terms and conditions of this Agreement, LMC hereby grants to the Customer for the Subscription Term, a non-exclusive, non-transferable right and licence to use the Services during the Subscription Term solely for the Customer's care operations and in accordance with any other terms, conditions or restrictions detailed on the Customer Order Confirmation or this Agreement generally.  

2.7

LMC reserves full discretion to make modifications and/or updates to the Software and/or the Services at any time, including without limitation, new features, changing functionality, and updating licence terms, provided that where the Customer contests such modifications and/or updates demonstrably and materially adversely impact the Customer’s use of the Software and/or Services, then the Customer shall be entitled to terminate this Agreement on written notice to LMC. At all times, LMC shall, as part of the development of its business offering, be entitled to implement new features, limitations, specifications, capabilities, functions, release dates, general availability or other characteristics that do not affect the Software and the Services as they are currently being provided to the Customer.

2.8

The Services are provided “as is” and LMC disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Except as expressly set forth in this section, LMC does not warrant that; (a) the Services will be error-free or uninterrupted or free from Vulnerabilities or Viruses, or that LMC will correct errors within a specified period; (b) the Services will operate or integrate with any other hardware, software, systems, services or data not provided by LMC; or (c) the Services will meet the Customer’s requirements or specifications, nor does it make any warranty as to the results from the Customer’s use of the Services. The Customer acknowledges that LMC does not control the transfer of data over the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of the internet. LMC is not responsible for any delays, delivery failures, or other damage resulting from such problems. LMC is not responsible for any issues related to the performance, operation or security of the Services that arise from Customer Data provided to LMC by the Customer or third parties and the Customer waives any and all claims against LMC arising from or relating to information, content, data systems or services provided by it or third parties.  

2.9

The Customer’s exclusive remedy and LMC’s maximum liability for any failure in the Platform and/or Services shall be specific performance of the terms of this Agreement, and the correction of the deficiency that caused the failure. If LMC is unable to correct the failure in a commercially reasonable manner within 30 days, the Customer may terminate the this Agreement without penalty, and LMC will provide the Customer with a pro-rated refund for any period for which the Customer has paid in advance where the Agreement will have terminated.

3. Access to the Services

3.1

In relation to the Customer and its Customer Users, the Customer undertakes that:

(a) each Customer User shall keep all applicable accesses to the Services and Platform secure, and that each Customer User shall keep all applicable accesses and outputs of the Services confidential save as required to deploy the Services received;

(b) if any individual who is not a Customer User is granted access to the Services, then without prejudice to LMC's other rights, the Customer shall promptly take steps to rectify this, and shall not issue any new access or Platform materials to any such individual.

3.2

Where the Customer is granted a specified number of Customer User accounts in the Software, such accounts cannot be shared between Customer Users. A breach of this clause will result in termination of the infringing accounts and/or all accounts provided to the Customer without any compensation.

3.3

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or otherwise determined to be discriminatory by LMC; or

(d) is otherwise illegal or causes damage or injury to any person or property;

and LMC reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

3.4

The Customer 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:

1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Platform (as applicable) in any form or media or by any means; or
2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) use the Services and/or Platform to provide services to third parties; or

(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Platform available to any third party except the Customer Users, or

(d) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Platform, other than as provided under this 2; or

(e) introduce or permit the introduction of, any Virus or Vulnerability into LMC's network and information systems.  

3.5

As part of our Customer service, we will provide base support to ensure continued ability to access the Services in accordance with this Agreement. Additional bespoke technical support is provided to the Customer at LMC’s discretion for which there may be additional charges, which shall be agreed upon before being incurred.  

3.6

LMC does not monitor or assume any responsibility for content posted onto the Software. If at any time we decide to monitor the Software on any occasion it does not mean that we assume responsibility for removing any content or the conduct of any users at the time or in the future.

3.7

The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4. Software and Software Availability

4.1

LMC will, during the Subscription Term, provide the Software and make available the Documentation to the Customer. The Software will conform substantially to the Documentation.

4.2

LMC will use reasonable endeavours to provide the Software in accordance with the Availability SLA except for:

(a) planned maintenance carried out any day during 10.00 pm to 2.00 am UK time, and LMC will use reasonable endeavours to give the Customer at least 2 days' notice in advance; and  

(b) unscheduled maintenance performed outside of the planned maintenance timeframe due to a Security Event or, when not due to a Security Event, provided that LMC has used reasonable endeavours to give the Customer at least 1 hours' notice in advance.  

4.3

The Customer agrees that where the Software is unavailable, this may mean that the App is also unavailable.

4.4

Notwithstanding any other provision in this Agreement, if there is a Security Event, LMC may, without liability or prejudice to its other rights and without prior notice to the Customer:

(a) suspend any authorised user's access to the Services;  

(b) suspend the Services; and/or

(c) take any other reasonable steps LMC deems appropriate,

until the relevant Security Event has been resolved.  

4.5

If the Software fails to meet the Availability SLA, other than due to maintenance works (clause 4.2), a Security Event (clause 4.4), or any other reason outside of LMC's reasonable control, including issues relating to hardware, networks or Third Party Providers, LMC will use reasonable endeavours to resume availability of the Software as soon as possible.  

4.6

Subject to clause 11, the Customer will be entitled to the Availability Credits for each day where the Software fails to meet the Availability SLA for two or more hours during a given month. The Availability Credits shall be the Customer's sole and exclusive remedy for the Software's failure to meet the Availability SLA.  

4.7

The Availability Credits shall be shown as a deduction from the amount due from the Customer to LMC in the next invoice then due. LMC shall not, in any circumstances, be obliged to pay any money or make any refund to the Customer.

4.8

Subject to clause 4.9, LMC shall release updates, upgrades and new versions of the Software from time to time. The Customer shall request and procure that the Authorised Users install on the App any updates, upgrades and new versions of the Software released by LMC.  

4.9

Where the updates, upgrades and/or new versions of the Software include New Features (or LMC otherwise makes available to the Customer the New Features), the New Features may, at LMC's sole discretion, be subject to an optional additional charge to be paid by the Customer which shall be notified by LMC to the Customer. LMC will also notify the Customer if the provision of the New Features is subject to the entry by the parties into a separate agreement.

5. Data protection

5.1

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Processing Agreement.

5.2

In addition to clause 4.1, the parties are agreeing to be bound by the Data Processing Addendum as part of this Agreement to govern their relationship in respect of the control and processing of Personal Data.  

6. Customer's obligations

6.1

The Customer shall:

(a) provide LMC with:

1. all necessary co-operation in relation to this Agreement; and

2. all necessary access to such information as may be required by LMC; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement and comply with any of LMC’s policies which LMC communicates to it from time to time;

(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, LMC may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Customer Users use the Services and the Platform in accordance with this Agreement and shall be responsible for any Customer User's breach of this Agreement;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for LMC, 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 LMC from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to LMC'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.

6.2

The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data (which is owned by the applicable personal data subject) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

7. Charges and payment

7.1

The Customer shall pay the Subscription Fees to LMC in accordance with each Customer Order Confirmation and the terms of this Agreement generally.

7.2

Where requested, the Customer shall provide to LMC valid, up-to-date and complete payment card details or approved purchase order information acceptable to LMC and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details, the Customer hereby authorises LMC to bill such credit card for the Subscription Fees payable from time to time in in accordance with each Customer Order Confirmation.

7.3

If LMC has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of LMC:  

(a) LMC may, without liability to the Customer, disable the Customer's access to all or part of the Services and LMC 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 6% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.4

All amounts and fees stated or referred to in this Agreement:  

(a) shall (unless specifically agreed otherwise) be payable in GBP; and

(b) are exclusive of value added tax, which may be added to LMC's invoice(s) at the appropriate rate.

7.5

Where Subscription Fees are quoted and agreed for a fixed minimum period, the Customer agrees that the Subscription Fees are due in their entirety whether or not LMC has agreed a payment plan by instalments, and whether or not the Customer purports to terminate the agreement before the expiry of the Subscription Term.  

7.6

This Agreement shall, unless otherwise terminated in accordance with its terms, commence on the date set out in the Customer Order Confirmation and continue for the Subscription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period) at the end of the Subscription Term and each Renewal Period, except where either party gives at least 30 days notice to cancel the auto-renewal. In such case, the Agreement shall expire at the end of the then Subscription Term or Renewal Period.  

7.7

LMC shall be entitled to increase the Subscription Fees for each Renewal Period for subscriptions upon 30 days' prior notice to the Customer prior to renewal and any auto-renewed Customer Order confirmation shall be deemed to have been amended accordingly. The Customer shall not be obligated to renew this Agreement, without penalty, if the notified increase in Subscription Fees is not acceptable to the Customer.  

8. Proprietary rights, marketing and Third Party providers

8.1

The Customer acknowledges and agrees that LMC and/or its licensors own all intellectual property rights in the Software, Services and the Platform. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Platform.

8.2

LMC confirms that it has all the rights in relation to the Software, Services and the Platform that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

8.3

The Customer shall retain all right, title and interest in and to all of the Customer Data. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of, and intellectual property ownership or right to use, all Customer Data. The Customer grants to LMC a non-exclusive, worldwide, paid-up, royalty-free and transferable licence, which shall include a right for LMC’s employees, agents and subcontractors, to use, copy and modify the Customer Data which the Customer shares with LMC for the Subscription Term for the purposes of providing the Services.

8.4

With the Customer’s prior written approval in each instance, the Customer grants to LMC the right to use its company name and logo as a reference for marketing or promotional purposes on LMC’s website and marketing materials, as well as the right to use, copy, modify, publish, sub-license, communicate, distribute and otherwise exploit any comments, feedback and ideas that the Customer (or its Customer Users) submit to LMC from time to time.

8.5

In certain circumstances, LMC will collaborate with the Customer to support the Customer’s use of the products and/or services of a Third Party Provider, including without limitation, hardware devices, or services which are separate to those contemplated by these terms. In all instances, the Customer shall engage with Third Party Providers on separate contract terms which LMC is not a party to. As such, LMC shall bear no responsibility of any nature under such terms which are private to the parties to them. LMC makes no warranty or representation for the actions, omissions, usefulness or value of any Third Party Provider, and the Customer enters into terms with any Third Party Provider at its sole discretion. Termination of this Agreement shall not correlate and is not linked to the termination of a contract between a Third Party Provider and the Customer, and vice versa. LMC will not be responsible for or involved in invoicing and payments made or owing to Third Party Providers by the Customer, which where relevant, shall be managed solely between the applicable Third Party Provider and the Customer.

9. Confidentiality and compliance with policies

9.1

Each party agrees to keep confidential all Confidential Information and information relating to this Agreement and each party’s businesses generally, and will ensure that its respective employees and agents do the same. Keeping the information confidential includes not using it for purposes beyond what this agreement sets out, or generally to the detriment of the other party.

9.2

Clause 8.1 will not apply where disclosures are made:

(a) to their professional advisors;

(b) with written consent of the other parties;

(c) when required by law, a law enforcement agency, a tax authority, a governmental or regulatory authority or similar; or

(d) in relation to clearly and obviously non-confidential information, particularly where the information is already in the public domain.

9.3

Neither party may use the other party’s Confidential Information for any purpose other than performing its obligations pursuant to this Agreement, and each party shall take all reasonable steps to ensure that the 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.  

9.4

Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.

9.5

Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

9.6

The above provisions of this clause 8 shall continue to apply after termination of this Agreement.  ‍

10. Indemnity

10.1

The Customer shall defend, indemnify and hold LMC harmless from and against any and all actions, demands, liability, claims, damages, losses, penalties, fines and expenses including without limitation reasonably incurred legal fees and court costs, made by any third party due to, arising out of, resulting from or in connection with: (a) any information (including Customer Data or any other data) that the Customer or any person on its behalf submits, posts, or transmits as part of the Services; (b) the use of the Software, Services, Platform or third party services by the Customer or Customer Users in breach of this Agreement; or (c) the violation of any rights of any third party, including intellectual property or personal data rights by the Customer or Users.

10.2

LMC shall defend, indemnify and hold the Customer harmless from and against any and all actions, demands, liability, claims, damages, losses, penalties, fines and expenses including without limitation reasonably incurred legal fees and court costs, made by any third party due to, arising out of or resulting from where the Customer use of the Services or Platform in accordance with this Agreement infringes any third party intellectual property rights effective as of the Effective Date.

10.3

These indemnities are each subject to the provisos that:

(a) each indemnifying party is given prompt notice of any such claim;

(b) a party to be indemnified provides reasonable co-operation to the indemnifying party in the defence and settlement of such claim; and

(c) the indemnifying party is given sole authority to defend or settle the claim.

10.4

In the defence or settlement of any claim, LMC may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

10.5

In no event shall LMC, its employees, agents and sub-contractors be liable to the Customer to the extent that an alleged infringement is based on:

(a) a modification of the Software, Services or Platform by anyone other than LMC; or

(b) the Customer's use of the Software, Services or Platform in a manner contrary to the instructions given to the Customer by LMC; or

(c) the Customer's use of the Software, Services or Platform after notice of the alleged or actual infringement from LMC or any appropriate authority.

10.6

The foregoing states each party’s sole and exclusive rights and remedies, and the other party’s (including their employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

11. Limitation of liability

11.1

Except as expressly and specifically provided in this Agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Software, Services and the Platform by the Customer, and for conclusions drawn from such use;

(b) LMC is entitled to rely on the information provided to it by the Customer in relation to its business, operations and technical infrastructure, and cannot be responsible where such information is not accurate;

(c) 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

(d) the Software, Services and the Platform are provided to the Customer on an "as is" basis.

11.2

Nothing in this Agreement excludes the liability of a party:

(a) for death or personal injury caused by that party’s negligence; or

(b) for fraud or fraudulent misrepresentation.

11.3

Subject to clauses 10.1 and 10.2, neither party shall 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.

11.4

Subject to (a) clause 10.5, (b) any indemnity relating to breach of third party intellectual property rights, and (c) the Customer’s obligation to pay all Subscription Fees or other agreed fees as they fall due, each party’s total aggregate liability in contract (including in respect of each indemnity, other than as set out in (b) above)), 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 Services during the 12 months immediately preceding the date on which the claim arose.  

11.5

Nothing in this Agreement excludes or limits the liability of the Customer for any breach, infringement or misappropriation of LMC’s Intellectual Property Rights.  

11.6

The Customer is solely liable for backing up any content or data entered onto the Software. We strongly recommend that all of the Customer’s content and data on the Software and Services is regularly and completely backed up.

12. Term and termination

12.1

This Agreement shall continue throughout the Subscription Term and any Renewal Term (as applicable).  

12.2

Without affecting any other right or remedy available to it, where there is an extended notice period in a Customer Order Confirmation, 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 14 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 and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) 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 (IA 1986);

(d) 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;

(e) 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;

(f) 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 (being a company, partnership or limited liability partnership);

(g) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(h) 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 parts (c) to clause (g) (inclusive) of this clause;

(i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(j) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

12.3

LMC may additionally terminate this Agreement with immediate effect by giving written notice to the Customer if there is a Change of Control of the Customer.

12.4

On termination of this Agreement for any reason:

(a) the Customer shall pay to LMC all of LMC’s outstanding unpaid fees due in respect of the agreed minimum Subscription Term, along with any Services supplied but not yet paid for (and LMC shall submit an invoice payable on 30 day terms where no invoice or payment instruction has been sent yet);

(b) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and/or the Platform;  

(c) LMC may destroy or otherwise dispose of any of the Customer Data in its possession unless LMC receives, no later than thirty days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. LMC shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by LMC in returning or disposing of Customer 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

13. Force majeure

13.1

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.

14. Conflict

14.1

Any and all business entered into by LMC is subject to the terms set out in this Agreement and in the event of any conflict with any other terms and conditions, these terms shall prevail unless agreed otherwise in writing by an authorised representative LMC. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Customer Order Confirmation, the provisions in the Customer Order Confirmation shall prevail.

15. Waiver

15.1

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  

15.2

A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16. Rights and remedies

16.1

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17. Severance

17.1

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

17.2

If any provision or part-provision of this Agreement is deemed deleted under 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. Entire Agreement

18.1

This Agreement (including the terms set out in the Customer Order Confirmation) constitutes the entire Agreement between the parties and supersedes and extinguishes all previous and contemporaneous Agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

18.2

This Agreement takes priority in all cases over the Standard Terms and Conditions in case of conflict.

18.3

Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

18.4

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

18.5

Nothing in this clause shall limit or exclude any liability for fraud.

19. Assignment

19.1

The Customer shall not, without the prior written consent of LMC, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19.2

LMC 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.

20. Third party providers

20.1

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. LMC makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not LMC. LMC recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website.  LMC does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.  

21. No partnership or agency

21.1

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).

22. Third party rights

22.1

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.

23. Notices

23.1

Any notice given to a party under or in connection with this Agreement shall be sent by email to the email address for the other party set out in the Customer Order Confirmation.

23.2

Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service (national mail), at 9.00 am on the second Business Day after posting;  

(c) if sent by pre-paid first-class post or other next working day delivery service (international mail), at 9.00 am on the seventh Business Day after posting; or

(d) if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.

23.3

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.  

24. Age Restriction

24.1

An individual purchasing the Services on behalf of the Customer (being a company or other legal entity or organisation) must be at least 18 years old. By entering into to this Agreement, any such individual represents and warrants to LMC that: (i) they are at least 18 years old; and (ii) they have authority to legally bind the entity on whose behalf it enters into this Agreement.

25. Governing law

25.1

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 interpreted in accordance with the law of England and Wales.

26. Jurisdiction

26.1

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).