Terms

1.                Interpretation

1.1             The definitions in this clause apply in these terms and conditions.

Agreement	the agreement between the Supplier and the Customer setting out the applicable commercial terms for the provision of the Services;
Authorised Users	employees, agents and independent contractors of the Customer authorised by the Customer to use the Services and the Documentation;
Customer	the person named as the Customer in the Agreement;
Customer Data	any data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation	the document made available to the Customer by the Supplier online via www.wurqi.com/terms or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and user instructions for the Services;
Normal Business Hours	8.00 am to 6.00 pm local UK time, each Monday to Friday (but excluding English bank holidays);
Services	the subscription services provided by the Supplier to the Customer under the Agreement, subject to these terms and conditions, via www.wurqi.com/terms or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation;
Software	the online software applications provided by the Supplier as part of the Services;
Subscription Fees	the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Agreement;
Subscription Term	has the meaning given in the Agreement;
Supplier	Whun Tu Limited; and
User Subscriptions	the user subscriptions purchased by the Customer pursuant to the Agreement which entitle Authorised Users to access and use the Services and the Documentation in accordance with these terms and conditions.

2.                User Subscriptions

2.1             Subject to the Customer purchasing the User Subscriptions in accordance with clause 9.1, the restrictions set out in this clause 2 and the remainder of these terms and conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2             In relation to the Authorised Users, the Customer undertakes that:

2.2.1          the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

2.2.2          it will not allow or suffer any User Subscription to be used by more than one individual Authorised User, unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

2.2.3          each Authorised User shall keep a secure password for his use of the Services and Documentation;

2.2.4          it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User.  Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to significantly interfere with the Customer’s normal conduct of business;

2.2.5          if any of the audits referred to in clause 2.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then, without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

2.2.6          if any of the audits referred to in clause 2.2.4 reveal that the Customer has underpaid Subscription Fees to the Supplier, then, without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Agreement applicable at the date of the relevant audit.

2.3             The Customer shall not access, store, distribute or transmit any Viruses (as defined below), or any material during the course of its use of the Services that:

2.3.1          is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.2          facilitates illegal activity;

2.3.3          depicts sexually explicit images;

2.3.4          promotes unlawful violence;

2.3.5          is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.3.6          in a manner that is otherwise illegal or causes damage or injury to any person or property;

and the Supplier 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.

A “Virus” is 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.

2.4             The Customer shall not:

2.4.1          except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a)       and except to the extent expressly permitted under these terms and conditions, 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 Documentation (as applicable) in any form or media or by any means; or

(b)       attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.4.2          access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.4.3          use the Services and/or Documentation to provide services to third parties; or

2.4.4          license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

2.4.5          attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.5             The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

3.                Additional User Subscriptions

The Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Agreement and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these terms and conditions.

4.                Services

4.1             The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement and these terms and conditions.

4.2             The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

4.2.1          planned maintenance carried out during the maintenance window of [10.00 pm to 2.00 am UK time]; and

4.2.2          unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer reasonable notice in advance.

4.3             The Supplier will only provide basic support in relation to the Services as set out at www.wurqi.com/terms or such other website address as may be notified to the Customer from time to time.  The Supplier may amend the support it offers in its sole and absolute discretion from time to time.

5.                Customer data

5.1             The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2             The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at https://wurqi.com/privacy-policy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

5.3             If the Supplier processes any personal data on the Customer’s behalf when performing its obligations, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

5.3.1          the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations;

5.3.2          the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement and these terms and conditions on the Customer’s behalf;

5.3.3          the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.3.4          each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6.                Third party providers

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.  The Supplier makes no representation 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 the Supplier.  The Supplier 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.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7.                Supplier’s obligations

7.1             The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2             The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.  Notwithstanding the foregoing, the Supplier:

7.2.1          does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

7.2.2          is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3             Nothing in the Agreement or these terms and conditions shall prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

7.4             The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement and these terms and conditions.

8.                Customer’s obligations

The Customer shall:

8.1.1          provide the Supplier with:

(a)       all necessary co-operation in relation to the Agreement and these terms and conditions; and

(b)       all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

8.1.2          comply with all applicable laws and regulations with respect to its activities under the Agreement;

8.1.3          carry out all other Customer responsibilities set out in the Agreement and these terms and conditions 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.4          ensure that the Authorised Users use the Services and the Documentation in accordance with the Agreement and these terms and conditions and shall be responsible for any Authorised User’s failure to do so;

8.1.5          obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement and these terms and conditions, including without limitation the Services;

8.1.6          ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

8.1.7          be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’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.

9.                Charges and payment

9.1             The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions monthly in advance by direct debit to the bank account of the Supplier unless expressly specified otherwise in the Agreement.

9.2             If the Supplier has not received payment of any sum due to it on the due date for such payment, and without prejudice to any other rights and remedies of the Supplier the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the payment in question remains unpaid.

9.3             All amounts and fees stated or referred to in the Agreement:

9.3.1          shall be payable in pounds sterling unless stated otherwise in the Agreement;

9.3.2          are, subject to clause 12.4.2, non-cancellable and non-refundable;

9.3.3          are exclusive of value added tax, which shall be payable by the Customer at the appropriate rate.

9.4             If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in the Agreement.

9.5             The Supplier shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to the excess storage fees payable pursuant to clause 9.4, upon prior notice to the Customer.

10.             Proprietary rights

10.1           The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Customer is not granted any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2           The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement and these terms and conditions.

11.             Indemnity

11.1           The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

11.1.1       the Customer is given prompt notice of any such claim;

11.1.2       the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

11.1.3       the Customer is given sole authority to defend or settle the claim.

11.2           The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

11.2.1       the Supplier is given prompt notice of any such claim;

11.2.2       the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

11.2.3       the Supplier is given sole authority to defend or settle the claim.

11.3           In the defence or settlement of any claim, the Supplier 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 the Agreement on 5 days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

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

11.4.1       a modification of the Services or Documentation by anyone other than the Supplier; or

11.4.2       the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

11.4.3       the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

11.5           The foregoing  and clause 12.4.2 state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12.             Limitation of liability

12.1           This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

12.1.1       arising under or in connection with the Agreement and these terms and conditions;

12.1.2       in respect of any use made by the Customer of the Services and Documentation or any part of them; and

12.1.3       in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement and these terms and conditions.

12.2           Except as expressly and specifically provided in the Agreement and these terms and conditions:

12.2.1       the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

12.2.2       all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement and these terms and conditions; and

12.2.3       the Services and the Documentation are provided to the Customer on an “as is” basis.

12.3           Nothing excludes the liability of the Supplier:

12.3.1       for death or personal injury caused by the Supplier’s negligence; or

12.3.2       for fraud or fraudulent misrepresentation.

12.4           Subject to clause 12.2 and clause 12.3:

12.4.1       the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

12.4.2       the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 6 months immediately preceding the date on which the claim arose.

13.             Term and termination

13.1           The Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the date set out in the Agreement and shall continue for the Subscription Term unless otherwise terminated:

13.1.1       in accordance with the provisions of the Agreement; or

13.1.2       on 30 days’ written notice from one party to the other; or

13.1.3       in accordance with the provisions of these terms and conditions.

13.2           Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

13.2.1       the other party fails to pay any amount due under the Agreement or these terms and conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

13.2.2       the other party commits a material breach of any other term of the Agreement or these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

13.2.3       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 ;

13.2.4       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;

13.2.5       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;

13.2.6       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;

13.2.7       the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

13.2.8       a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

13.2.9       a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

13.2.10     any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.3 to clause 13.2.9 (inclusive); or

13.2.11     the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.3           On termination of the Agreement for any reason:

13.3.1       all licences granted under the Agreement or these terms and conditions shall immediately terminate;

13.3.2       each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

13.3.3       the Supplier shall, at its sole option and discretion, destroy, delete or otherwise dispose of any of the Customer Data in its possession; and

13.3.4       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 or these terms and conditions which existed at or before the date of termination shall not be affected or prejudiced.

14.             Force majeure

The Supplier shall have no liability to the Customer under the Agreement and these terms and conditions if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15.             Conflict

If there is an inconsistency between any of the provisions in the Agreement and these terms and conditions, the provisions in the Agreement shall prevail.

16.             Variation

No variation of the Agreement or these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.             Waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.             Rights and remedies

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

19.             Severance

19.1           If any provision (or part of a provision) of the Agreement or these terms and conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2           If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20.             Entire agreement

20.1           The Agreement and these terms and conditions constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

20.2           Each of the parties acknowledges and agrees that in entering into the Agreement and these terms and conditions, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of the Agreement, other than as expressly set out in the Agreement and these terms and conditions.

21.             Notices

21.1           Any notice required to be given under the Agreement or these terms and conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the agreement, or such other address as may have been notified by that party for such purposes.

21.2           A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

22.             Governing law

This Agreement, together with these terms and conditions, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

23.             Jurisdiction

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 the Agreement and these terms and conditions or their subject matter or formation (including non-contractual disputes or claims).