Terms & Conditions

SAAS TERMS AND CONDITIONS

1 HOW TO READ THIS AGREEMENT

1.1 MEANING OF CAPITALISED WORDS AND PHRASES

Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Key Details;
(b) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 18 of this agreement.

1.2 ORDER OF PRECEDENCE

(a) Subject to clause 1.2(b) and unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and the Key Details, these terms and conditions will prevail to the extent of such inconsistency.
(b) Any Special Conditions set out in the Key Details are incorporated in these terms and conditions and will replace and prevail over any other terms to the extent of any inconsistency.

2 TERM OF THIS AGREEMENT

(a) This agreement commences on the Commencement Date and will continue for the Initial Term, and any Renewal Term applicable per clause 2(b), unless terminated earlier in accordance with clause 13 (Term).
(b) Subject to clause 2(c), upon expiration of the Initial Term, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Initial Term (Renewal Term).
(c) This agreement will not automatically renew on expiry of the Initial Term or a Renewal Term (Renewal Date), if either party provides written notice that this agreement will not renew at least 30 days prior to the Renewal Date.

3 THE SOLUTION

3.1 SCOPE OF SOLUTION

Mentor Software will provide the Solution to the extent described in the Key Agreement Details.

3.2 ACCOUNTS

(a) (Accounts) To use the Solution, you will need to set up staff accounts and enter the home details through our setup portal (Registration).
(b) (Provide Information) As part of the Registration process and as part of your continued use of the Solution, you will be required to provide personal information and details, such as your email address, first and last name, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, payment details, ratings and reviews, verified identifications, verified certifications and authentication, and other information as determined by us from time to time.
(c) (Warranty) You warrant that any information you give to us in the course of completing the Registration process is accurate, honest, correct and up-to-date.
(d) (Acceptance) Once you complete the Registration process, we may, in our absolute discretion, choose to accept you as a registered user and provide you with an account to use the Solution.

3.3 DISCLAIMER

The Client acknowledges and agrees that:
(a) any information provided by Mentor Software as part of or in connection with the Solution is general in nature, may not be suitable for the Client’s circumstances and does not constitute financial, legal or any other kind of professional advice; and
(b) it the Client’s responsibility to comply with applicable Laws relevant to the Client’s business, including industrial relations Laws and privacy Laws.

3.4 CHANGES TO THE SOLUTION

(a) (Enhancements and Customisations) Mentor Software may from time to time in its absolute discretion install enhancements to the Solution, where enhancements mean any upgraded, improved, modified or new versions of the Solution (including any customisations made at the Client’s request). We will provide you with notice if and when updates are scheduled to take place.
(b) (Additional licences) If additional homes are required to the Number of Licenses set out in the Key Details, the following process will apply:
(i) the Client must notify Mentor Software of the number of additional licenses required; and
(ii) Mentor Software will invoice the Client the Additional Licensed Fee for each additional licence for the then current month and the remaining months of that year.

3.5 SOFTWARE LICENCE

During the Term, Mentor Software grants to the Client a non-exclusive, non-transferable licence to use the Solution for the Number of Licenses set out in a Key Details in accordance with this agreement.

3.6 SUPPORT SERVICES

Mentor Software will provide general support where reasonably necessary to resolve technical issues with the Software (Support Services). Unless otherwise agreed in writing:
(a) Mentor Software will take reasonable steps to provide Support Services where necessary (the Client must first endeavour to resolve any issues with the Software internally and Mentor Software will not assist with issues that are beyond Mentor Software’s reasonable control);
(b) Mentor Software will use our best endeavours to respond to requests for Support Services and the Client acknowledge that Mentor Software will not be available 24/7 or respond within a particular time frame;
(c) The Client is responsible for all internal administration and managing access, including storing back-up passwords and assisting Users to access and use the Solution; and
(d) The Client will not have any claim for delay to the Client (including a Users) access to the Software due to any failure or delay in Support Services.

3.7 HOSTED SERVICES

Mentor Software will store Client Data using a third-party hosting service selected by Mentor Software (Hosting Service), subject to the following terms:
(a) (hosting location) The Client acknowledges and agrees that Mentor Software may host the Software via cloud-based services which use storage servers located in and potentially outside England and Wales.
(b) (service quality) While Mentor Software will use its best efforts to select an appropriate hosting provider, Mentor Software does not guarantee that the Hosting Service will be free from errors or defects or that Client Data will be accessible or available at all times.
(c) (security) Mentor Software will use its best efforts to ensure that Client Data is stored securely. However, Mentor Software does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups and disaster recovery) In the event that Client Data is lost due to a system failure (e.g., a database or webserver crash), Mentor Software cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

3.8 SUBCONTRACTING

Mentor Software may subcontract any aspect of providing the Solution and the Client hereby consents to such subcontracting.

4 CLIENT OBLIGATIONS

4.1 GENERAL

The Client:
(a) must provide Mentor Software with all documentation, information and assistance reasonably required by Mentor Software to provide the Solution; and
(b) agrees that it will not, by receiving or requesting the Solution:
(i) breach any applicable laws, rules or regulations (including any applicable privacy laws); or
(ii) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

4.2 USERS

(A) The Client must, and must ensure that all Users:
(i) comply with this agreement at all times; and
(ii) notify Mentor Software without delay whenever it becomes aware of any case of a breach of this clause 4 or otherwise any illegal or unauthorised use of the Solution.
(b) The Client acknowledges and agrees that Mentor Software will have no liability for any act of a User or for damage, loss or expense suffered by a User in connection with the use of the Solution and will indemnify Mentor Software for any such damage, loss or expense.

4.3 USE OF SOLUTION

The Client must not, and must not encourage or permit any User or any third party to, without Mentor Software’s prior written approval:
(a) upload sensitive information or commercial secrets to the Solution;
(b) upload any harmful, discriminatory, defamatory, maliciously false implications, offensive, explicit, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material to the Solution;
(c) upload any material that is owned or copyrighted by a third party;
(d) make copies of the Documentation or the Solution;
(e) adapt, modify or tamper in any way with the Solution;
(f) remove or alter any copyright, trade mark or other notice on or forming part of the Solution or Documentation;
(g) create derivative works from, translate or reproduce the Solution or Documentation;
(h) publish or otherwise communicate the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
(i) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Solution or Documentation to any third party, other than sub-licensing to a Licensed User for the Number of Licenses;
(j) decompile or reverse engineer the Solution or any part of it, or otherwise attempt to derive its source code;
(k) attempt to circumvent any technological protection mechanism or other security feature of the Solution;
(l) permit any person other than Licensed Users to use or access the Solution or Documentation;
(m) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of the Solution or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
(n) share its Software account information with any other person and that any use of its account by any other person is strictly prohibited. The Client, must immediately notify Mentor Software of any unauthorised use of it or its User’s account, password or email, or any other breach or potential breach of the Solution’s security;
(o) use the Solution for any purpose other than for the purpose for which it was designed, such as not using the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity; nor
(p) act in any way that may harm Mentor Software’s reputation or that of associated or interested parties or do anything at all contrary to the interests of Mentor Software or the Solution.

4.4 CLIENT DATA

By providing or posting Client Data, the Client represents and warrants that, and must ensure that all Users make equivalent representations and warranties:
(a) the Client is authorised to provide the Client Data;
(b) the Client Data is accurate and true at the time it is provided;
(c) the Client Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(d) the Client Data does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(e) the Client Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
(f) the Client Data does not breach or infringe any applicable laws.

5 PAYMENT

5.1 FEES

(a) The Client must pay to Mentor Software fees in the amounts and at the times set out in a Key Details, or as otherwise set out in this agreement or agreed to in writing (Fees).
(b) All Setup Fees are paid in advance and non-refundable for change of mind.

5.2 TIME FOR PAYMENT

Unless otherwise agreed in writing:
(a) if Mentor Software issues an invoice to the Client, payment must be made by the time(s) specified on such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.

5.3 FAILURE TO PAY

Unless otherwise agreed, Mentor Software may, in its absolute discretion:
(a) not provide any part of the Solution until the Client has paid the Fees; and
(b) withhold delivery of any part of or all of the Solution until the Client has paid the invoice in respect of the Solution.

5.4 VAT

Unless otherwise indicated, the Fees do not include VAT. In relation to any VAT payable for a taxable supply by Mentor Software, the Client must pay the VAT subject to Mentor Software providing a tax invoice.

5.5 ONLINE PAYMENT PARTNER

We may use third-party payment providers (Payment Providers) to collect payments under this agreement. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

6 INTELLECTUAL PROPERTY

6.1 CLIENT DATA

(a) The Client grants to Mentor Software (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Data to the extent reasonably required to provide the Solution.
(b) The Client:
(i) warrants that Mentor Software’s use of Client Data as contemplated by this agreement will not infringe any third-party Intellectual Property Rights; and
(ii) indemnifies Mentor Software from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

6.2 PROVIDER IP

(a) Unless otherwise expressly agreed in a Key Details, the Client will not under this agreement acquire Intellectual Property Rights in any Mentor Software IP or Developed IP.
(b) Any Developed IP will be solely and exclusively owned by Mentor Software and vest in Mentor Software immediately upon creation.
(c) Mentor Software grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Mentor Software IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Solution.

6.3 DEFINITIONS

For the purposes of this clause 6:
(a) “Developed IP” means any materials produced by Mentor Software in the course of providing the Solution including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
(b) “Provider IP” means all materials owned or licensed by Mentor Software that is not Developed IP and any Intellectual Property Rights attaching to those materials.

7 CONFIDENTIALITY

7.1 CONFIDENTIALITY

(a) Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by a party to its subcontractors, employees or agents for the purposes of fulfilling its obligations under this agreement (Additional Disclosees).

7.2 BREACH

If either party becomes aware of a suspected or actual breach of this clause 7 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.

8 THIRD PARTY SOFTWARE AND TERMS

(a) The Client acknowledges and agrees that third party terms and conditions (Third Party Terms) may apply to use of the Solution.
(b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution and Mentor Software will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) Mentor Software will endeavour to notify the Client of Third Party Terms that apply to the Solution, in which case:
(i) the Client must immediately notify Mentor Software if it does not agree to such Third Party Terms; and
(ii) if Mentor Software does not receive a notice in accordance with clause 8(c)(i), the Client will be taken to have accepted those Third Party Terms, and Mentor Software will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(d) The Client acknowledges and agrees that if it does not agree to any Third Party Terms, this may affect Mentor Software’s ability to meet any agreed schedules for delivering the Solution.

8.2 THIRD PARTY SOFTWARE

(a) The Client acknowledges and agrees that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. Mentor Software cannot guarantee that integration processes between the Solution and other software programs or IT systems will be free from errors, defects or delay.
(b) The Client agrees that Mentor Software will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Solution if the Client integrates it with third party software, or changes or augments the Solution, including by making additions or changes to the Solution code or by incorporating APIs into the Solution.
(c) If the Client adds third party software or software code to the Solution, integrates the Solution with third party software, or make any other changes to the Solution, including the Solution code (User Software Changes), then:
(i) the Client acknowledges and agrees that Client Solution Changes can have adverse effects on the Solution, including the Solution;
(ii) the Client indemnifies Mentor Software in relation to any loss or damage that arises in connection with the Client Solution Changes;
(iii) Mentor Software will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;
(iv) Mentor Software may require the Client to change or remove Client Solution Changes, at Mentor Software’s discretion, and if Mentor Software does so, the Client must act promptly;
(v) Mentor Software may suspend the Client’s access to the Solution until the Client has changed or removed Client Solution Changes; and/or
(vi) Mentor Software may change or remove any Client Solution Changes, in its absolute discretion. Mentor Software will not be liable for loss of data or any other loss or damage the Client may suffer in relation to Mentor Software’s amendment to, or removal of, any User Software Change.

9 PRIVACY AND DATA PROTECTION

9.1 CLIENT DATA

(a) Words and phrases in this section shall have the meaning given to them by applicable data protection and privacy laws, including the General Data Protection Regulation 2016/679 (GDPR) and applicable national legislation that implements or supplements the GDPR or otherwise applies to data protection and privacy, and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated (Data Protection Legislation) and the terms “controller”, “processor”, “process” and “personal data” shall have the meanings given to those terms in such Data Protection Legislation.
(b) During and after the delivery of the Solution, the Client agrees that Mentor Software will be processing personal data for its own purposes and as such will be a controller under the Data Protection Legislation and this includes (but is not limited to) the following purposes:
(i) Mentor Software providing the Solution;
(ii) Mentor Software and/or its subcontractors and third party suppliers use the contact details the Client and the Client’s representatives to send marketing materials or other publications;
(iii) Mentor Software may process personal data concerning its other clients and contacts in other ways for its own business purposes;
(iv) Mentor Software may process and transfer personal data as necessary to effect a re-organisation of its business; and
(v) Mentor Software may share personal data with other legal or professional advisers used by us to provide the Client with legal or professional services.
(c) The Client’s instructions are taken to include the use by Mentor Software, where appropriate, of independent contractors and third party suppliers appointed by us for functions such as data and file storage, back-up, destruction, billing, debt collection, legal processing and the like, in accordance with the foregoing.
(d) By accepting this agreement the Client gives positive consent for Mentor Software to obtain, store and process information about the Client as described in this clause 8.
(e) Each party shall comply with the terms of the Data Protection Legislation.

9.2 THIRD PARTY DATA

(a) During and after the delivery of the Solution, there may be limited occasions where Mentor Software may process on the Client’s behalf as a processor any personal data the Client have provided to Mentor Software. Mentor Software will advise the Client in writing where Mentor Software believes Mentor Software may act as a processor and any such processing shall be in accordance with, and subject to, this clause 9.2 and Schedule 1.
(b) The Client agrees that where necessary the Client will have satisfied relevant statutory ground under the Data Protection Legislation in connection with the processing, before providing Mentor Software with personal data.
(c) The Client warrants, in relation to the personal information and all other data that it provides to Provider in connection with this agreement (Third Party Data), that:
(i) the Client has all necessary rights in relation to Third Party Data, such that the the Solution can be performed in respect of that data;
(ii) the Client is not breaching any Law by providing Provider with Third Party Data;
(iii) Provider will not breach any Law by processing any Third Party Data;
(iv) there are no restrictions placed on the use of the Third Party Data (including by any Third Party Terms) and if there are any such restrictions, the Client has notified Provider of this, and Provider has agreed to provide the Solution in respect of that data (being under no obligation to do so); and
(v) Provider will not breach any Third Party Terms by providing the Solution and processing in relation to any Third Party Data.
(d) The Client agrees at all times to indemnify and hold harmless Provider and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 9.2(a).
(e) The Client and Mentor Software acknowledge that in respect of any Third Party Data and for the purposes of the Data Protection Legislation, the Client is the controller and Mentor Software is the processor.
(f) The Client and Mentor Software will comply with the Data Protection Legislation.
(g) Mentor Software shall, in relation to any Personal Data processed in connection with this clause 9.2
(i) process that Personal Data only on written instructions of the Client as detailed in Schedule 1, as updated from time to time;
(ii) keep the Personal Data confidential;
(iii) comply with the Client’s reasonable instructions with respect to processing Personal Data;
(iv) not transfer any Personal Data outside of the UK unless, in accordance with the Data Protection Legislation, Mentor Software ensures that:
(A) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or
(B) there are appropriate safeguards in place for the transfer of Personal Data; or
(C) binding corporate rules are in place; or
(D) one of the derogations for specific situations applies to the transfer;
(v) assist the Client at the Client’s cost in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Client without undue delay on becoming aware of a Personal Data breach or communication which relates to Mentor Software’s or Client’s compliance with the Data Protection Legislation;
(vii) at the written request of the Client, delete or return Personal Data (and any copies of the same) to the Client on termination of this agreement unless required by the Data Protection Legislation to store the Personal Data; and
(viii) maintain complete and accurate records and information to demonstrate compliance with this clause 9.2 and allow for audits by the Client or the Client’s designated auditor.
(h) Mentor Software shall ensure that they have in place appropriate technical or organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:
(i) pseudonymising and encrypting Personal Data;
(ii) ensuring confidentiality, integrity, availability and resilience of its systems and services;
(iii) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
(iv) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.
(i) The Client agrees that any subcontractor appointed under clause 3.8 is a third-party processor of Personal Data under this agreement.

10 WARRANTIES

10.1 SERVICE LIMITATIONS

The Solution is made available to the Client strictly on an ‘as is’ basis. Without limitation, the Client acknowledges and agrees that Mentor Software cannot guarantee that:
(a) the Solution will be free from errors or defects;
(b) the Solution will be accessible at all times;
(c) messages sent through the Solution will be delivered promptly, or delivered at all;
(d) information received or supplied through the Solution will be secure or confidential; or
(e) any information provided through the Solution is accurate or true.

10.2 CORRECTION OF DEFECTS

(a) Mentor Software will correct any errors, bugs or defects in the Solution which arise during the Term, and which are notified to Mentor Software by the Client unless the errors, bugs or defects:
(i) result from the interaction of the Solution with any other solution or any computer hardware or services not approved in writing by Mentor Software;
(ii) result from any misuse of the Solution; or
(iii) result from the use of the Solution by the Client other than in accordance with this agreement or the Documentation.
(b) The Client agrees to provide Mentor Software and its Personnel reasonable access to its premises, Personnel and IT systems to assist Mentor Software in correcting any defects in the Solution.

10.3 EXCLUSION OF OTHER WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.

11 LIABILITY

(a) (Liability) To the maximum extent permitted by applicable law, Mentor Software limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort, statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by Mentor Software to the amount paid by the Client to Mentor Software in the 3 months preceding the date of the event giving rise to the relevant liability.
(b) (Indemnity) The Client indemnifies Mentor Software and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
(i) breach of any third party intellectual property rights;
(ii) breach of any term of this agreement;
(iii) negligent, wilful, fraudulent or criminal act or omission; or
(iv) use of the Solution.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Mentor Software be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Mentor Software.
(d) (Unfair Contract Terms) To the extent that the provisions of any applicable law shall impose restrictions on the extent to which liability can be excluded under these T&Cs or a Scope of Work including, for the avoidance of doubt, the provisions of sections 3, 6 and 11 of the Unfair Contract Terms Act 1977 in the UK (and its equivalent in any other jurisdiction) relating to the requirement of reasonableness, the exclusions set out in this clause shall be limited in accordance with such restrictions. However, any exclusions of liability that are not affected by such restrictions shall remain in full force and effect.
(e) Nothing in this agreement shall exclude or limit a party’s liability for fraud or intentional unlawful conduct by a party, or death or personal injury resulting from a party’s negligence.

12 UPGRADES AND DOWNGRADES

(a) The Client may notify Mentor Software that it would like to upgrade or downgrade its Subscription Tier at any time, and the Client must do so if the Number of Licences changes such that the Client’s use of the Solution falls into a new Subscription Tier.
(b) If the Client provides a notice under clause 12(a), or Mentor Software otherwise becomes aware that the Client’s use of the Solution has changed such that it falls into a new Subscription Tier, Mentor Software will:
(i) take reasonable steps to promptly provide the Client with access to the new Subscription Tier; and
(ii) in the monthly billing cycle immediately following the month in which the Client’s access to the new Subscription Tier was provided (First Access Month):
(A) charge the Client the new, relevant Subscription Fee for that subsequent month (Second Access Month), and each subsequent month (subject to another notice or change under this clause 12); and
(B) if the Subscription Fee for the Second Access Month is higher than in the First Access Month, then Mentor Software will charge the Client the new, relevant Subscription Fee for the proportion of the First Access Month that the Client had access to the new Subscription Tier, on a pro rata basis.
(c) For the avoidance of doubt, if the Client chooses to downgrade its Subscription Tier, the new Subscription Fees will kick in at the start of the next billing cycle, unless Mentor Software notifies the Client otherwise. Mentor Software generally does not pro-rate downgrades in between billing cycles, however Mentor Software reserves the right to from time to time.
(d) These Terms will be taken to be amended in accordance with any changes agreed in accordance with this clause 12.

13 TERMINATION

13.1 TERMINATION BY US

(a) Mentor Software may end this agreement by providing notice to the Client.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, Mentor Software will provide an invoice to the Client for:
(i) any Fees for the Solution up to the End Date; and
(ii) any pre-approved third party costs Mentor Software has incurred on the Client’s behalf up to the End Date,
(together, the Outstanding Amounts)
(d) The Client will pay the Outstanding Amounts to Mentor Software within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.

13.2 TERMINATION FOR BREACH

(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 14. The indemnities, warranties and liability caps in clause 11 will apply to any disputes and resulting claims.
(g) Where the Notifying Party is Mentor Software and Mentor Software provides a Termination for Breach Notice, Mentor Software will provide along with such notice, an invoice for any Outstanding Amounts. The Client will pay the Outstanding Amounts to Mentor Software within 10 Business Days after the Termination for Breach Notice is provided, unless the parties otherwise agree in writing to a payment plan.

13.3 OTHER CONSEQUENCES FOR TERMINATION

If this agreement ends, in addition to the specific consequences set out in clause 13.1 or 13.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) where applicable, the Client must remove the Solution from all its computer systems;
(c) comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation clauses 11 and 6; and
(d) stop using any materials that are no longer owned by, or licensed to, them under clause 3.5 and 6.

13.4 DATA BACKUP

(a) Upon termination or expiry of this agreement, Mentor Software may delete data and material associated with the Client, including Client Data, 14 days after the end of the Term.
(b) Mentor Software will provide the Client with a link, at the end of the Term, to extract the Client Data from the Solution (Data Retrieval Link). The Data Retrieval Link will be valid for 7 days (Data Retrieval Period).
(c) Mentor Software will not be able to recover any such data or content more than 14 days after the end of the Term, so it is recommended that the Client backs up anything important to it during the Data Retrieval Period.
(d) Mentor Software will not be responsible to the Client, or any user, for, and Mentor Software expressly disclaims any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of this agreement and any loss of data.

14 IF THE PARTIES HAVE A DISPUTE

(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory injunction, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

15 NOTICES

(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Key Details and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

16 FORCE MAJEURE

(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 16(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

17 GENERAL

17.1 GOVERNING LAW AND JURISDICTION

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

17.2 THIRD PARTY RIGHTS

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

17.3 AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

17.4 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

17.5 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

17.6 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

17.7 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

17.8 COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

17.9 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

17.10 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

17.11 INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to £, or “GBP”, is to pound sterling currency of Great Britain, unless otherwise agreed in writing.

18 DEFINITIONS

In this agreement, capitalised terms have the meaning given to them in a Key Details, and the following phrases have the meaning set out below.

Definition of Terms

Business Day: Means a day, other than a Saturday, Sunday or Public Holiday in London, England.

Confidential Information: Means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.

Client Data: Means files, data, information or any other materials, which is uploaded or inserted to the Solution, or otherwise provided to Mentor Software, by the Client or its Licensed Users, and includes any Intellectual Property Rights attaching to such materials.
Documentation means all manuals, help files and other documents supplied by Mentor Software to the Client relating to the Solution, whether in electronic or hardcopy form.

Fees: Has the meaning given in clause 5.1(a) and includes the Setup Fee and Annual Fee set out in a Key Details.

Intellectual Property Rights: Means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.

Key Details: Means the table at the beginning of this agreement titled “Key Details”.
Licensed User: Means a user of the Solution and Documentation who has been validly granted access to the Software and Documentation by the Client in accordance with clause 3.2.

Personnel: Means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
Solution: Has the meaning given in the Key Agreement Details.
User: Means the Client’s Licensed Users, its Personnel, and any other third party who are granted access to the Solution by the Client, its Licensed Users or its Personnel.

Schedule 1 Processing of Personal Data by Mentor Software

1 SCOPE

Personal data may be collected, stored and analysed on Mentor Software’s systems or the Client’s systems only and not within the sole control of Mentor Software at any time.

2 NATURE

Electronically, automatically through the Solution.

3 PURPOSE OF PROCESSING

To provide the Solution as contracted between Mentor Software and the Client and in accordance with this agreement.

4 DURATION OF PROCESSING

The duration of this agreement only.

6 CATEGORIES OF DATA SUBJECT

Employees and contractors of the Client, children/youth in the Client’s care.