Updated on the 21st of May, 2023.
2. The Service
The “Service” is a digital marketplace for invoice sourcing, through which the Customer has the opportunity to make its invoice claims available for sale to investors. A more detailed description of the Service, including its features and functionality, is described in the service description (“Service Description“). The latest version of the Service Description is available on the Service.
AREX uses reasonable endeavours to provide the Service to the Customer materially in accordance with the Service Description.
AREX always has the right to change the Service provided that the changes do not materially adversely affect the Service. Changes to the Service may apply to the content of the Service as well as to the service environment (such as software, communications or other equipment, products or components used in providing the Service). In the event of a change, AREX will amend the Service Description as necessary.
AREX shall use reasonable endeavours to notify the Customer of material changes no less than 30 days before the changes are to take effect. However, AREX is not obligated to report in advance of any critical or urgent changes (such as security updates, updates necessary to ensure availability or functionality, or other actions considered by AREX to be urgent changes).
If the Service changes materially from what is provided in this Agreement and the Customer does not accept the change, the Customer shall have the right to terminate this Agreement by giving 30 days’ advance written notice.
3. Access to the Service
AREX grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to use the Service for its internal business activities during the term of this Agreement, provided that the Customer complies with its obligations under this Agreement.
The Customer’s right to access and use the Service is conditional to the Customer paying to AREX the Fees and other agreed charges for the use of the Service.
The Customer acknowledges that it may not (i) use the Service for purposes other than those agreed by AREX in this Agreement or otherwise in writing from time to time; (ii) use the Service in breach of this Agreement or the applicable law; (iii) use the Service in a way that causes or is likely to cause interference, threat or damage to the Service or to other users of the Service, (iv) copy, reproduce, modify, translate, distribute, or otherwise transmit or transfer to the public the Service, the information or files contained therein, or to make derivative works of the Service or otherwise use the Service as a basis for development of proprietary services or products, or use the Service to provide the Service to third parties or allow them to use the Service; (v) decompile, break, reverse engineer, or otherwise attempt to determine the design, logic, structure or functionality (including algorithms and source code) of the Service; or (vi) use the documentation for other uses than supporting the use of the Service.
4. Use of the Service and user credentials
The Service is available over a network connection at the address or other connectivity indicated by AREX. The implementation of the Service is done by registering to the Service and providing the information specified by AREX at the time of registration. The Customer is responsible for ensuring the validity, completeness and accuracy of information given to AREX. The Customer must notify AREX of any changes to the information given to AREX without delay.
The use of the Service requires the Customer to comply with the trading rules specified by AREX from time to time, as described in the Service Agreement or updated through the Service. If the Customer fails to comply with these rules, AREX shall cease to be obliged to provide the Service.
The Customer shall designate one or more users to access and manage the Service (the “Users”). Only Users may access the Service. The Customer assumes responsibility for the Users’ use of the Service and liability for any resulting damage to AREX or the Service. The Customer shall provide the necessary personal and contact details of the Users and shall inform AREX of any changes.
The Customer shall ensure and assumes responsibility that any User credentials, login details or access codes (“Credentials”) to the Service are stored and used with due care and by the Users only. The Credentials may not be disclosed to third parties. The Customer is responsible for all and any use and access to the Service undertaken with its Credentials. The Customer will immediately notify AREX if it believes that the Credentials have been lost, leaked or otherwise compromised.
AREX may at any time change or block the Credentials if it believes they have been disclosed to a third party or may be used in violation of the terms of this Agreement.
5. Fees and Charges
AREX charges the Customer for the use of the Service in accordance with the price list made available to the Customer, as revised and updated from time to time (the “Fees”).
AREX may (i) deduct the Fees directly from the relevant transaction or (ii) raise an invoice for payment by the Customer of the Fees.
Invoices shall be paid by the Customer within 14 days of receipt by bank transfer into a single bank account as nominated in writing from time to time by AREX.
The Fees and any other amounts which may become payable from time to time by one Party to the other under this Agreement are stated exclusive of VAT which if applicable, shall be payable in addition by the Party making payment at the applicable rate in force from time to time (subject to the provision of a valid VAT invoice by the Party receiving the payment in question).
The Fees and any other amounts which may become payable from time to time by one Party to the other under this Agreement shall be paid by the applicable Party in full in accordance with the terms of this Agreement without set off, deduction or withholding on any account.
6. Intellectual Property Rights
AREX will exclusively retain (i) all of its rights to confidential information; (ii) sole ownership of AREX technology including all derivative works thereof or improvements or enhancements thereto created by either Party individually or jointly (the “AREX Technology”); (iii) all inventions owned, created or conceived by AREX; and (iv) all intellectual property rights in and to the foregoing. Items (i)-(iv) are collectively referred to as “AREX IP“. AREX grants no licences to use the AREX IP except as expressly specified in, and subject to, this Agreement.
All rights to the Service, its original content, features and functionality, as well as any subsequent changes, updates and improvements, and documentation related to the Service belong to AREX. The Service is protected by copyright, trade marks and other laws in England and other countries. AREX’s trade marks may not be used in any way by the Customer without the prior written consent of AREX.
The Customer will not, and will not allow others, including Users, to: (i) use any method to attempt to derive source code from any of the AREX Technol-ogy or other AREX IP; (ii) reproduce, modi-fy, or prepare derivative works of any of the AREX Technology (including documen-tation relating to AREX Technology) or other AREX IP; (iii) distribute or display any of the AREX Technology (in-cluding documentation relating to the AREX Technology) or other AREX IP other than to Users; or (iv) share, rent or lease the Services or other AREX IP.
The Customer will not be granted any rights to the Service other than the right to use the Service in accordance with clause 3.
By providing AREX with feedback related to the Service, the Customer will assign to AREX all rights to such feedback. AREX has the right to make use of such feedback and the general information it receives when the Customer uses the Service for any purpose, provided that the Customer’s confidential information is not disclosed to third parties.
7. Infringements of intellectual property rights
AREX confirms that it is the owner of all AREX IP and/or that it holds the necessary authority from any applicable third party owner of any AREX IP to grant the limited licence to use the Service to the Customer under this Agreement.
AREX undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that its use of the Service in accordance with the terms of this Agreement infringes the UK intellectual property rights of a third party (a “Claim”) and AREX shall be responsible for any reasonable and fully mitigated direct losses and expenses incurred by or awarded against the Customer as a direct result of or in connection with any such valid Claim which is made. This clause 7.2 shall not though apply where the Claim in question is attributable to any development of, modification to or maintenance of the Service by or on the behalf of the Customer without the prior written consent of AREX and/or any breach by the Customer of any of its obligations under this Agreement.
If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, AREX’s obligations under clause 7.2 are conditional upon the Customer:
as soon as reasonably possible giving written notice of the Claim to AREX specifying the nature of the Claim in reasonable detail;
not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of AREX;
giving AREX and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable AREX and its professional advisers to examine them and to take copies (at AREX’s expense) for the purpose of assessing the Claim; and
subject to AREX providing reasonable security against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as AREX may reasonably request to avoid, dispute, compromise or defend the Claim.
If any Claim is made, or in AREX’s reasonable opinion is likely to be made, against the Customer, AREX may at its sole option and expense:
procure for the Customer the right to continue using the Service in accordance with the terms of this Agreement;
modify the Service so that it ceases to be infringing; or
terminate this Agreement immediately by notice in writing to the Customer and refund any Fees paid by the Customer in advance with respect to the unexpired term of this Agreement.
This clause 7 constitutes the Customer’s exclusive remedy and AREX’s only liability in respect of any claim or allegation that the Service infringes the intellectual property rights of any third party and for the avoidance of doubt, AREX’s liability under this clause 7 is subject to clause 10.
The Customer shall defend, indemnify and hold harmless AREX 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 Service and/or documentation relating to the Service.
A Party (“Receiving Party“) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party“), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8, shall survive expiry or termination of this Agreement.
However, the obligations of confidentiality contained in clause 8.1 shall not apply to material and information (a) which is demonstrably publicly available or otherwise public; or (b) received by the receiving Party from a third party without any obligation of confidentiality; or (c) held by the receiving Party without any obligation of confidentiality prior to receiving them from the other Party; or (d) developed independently by a Party without utilising any material or information received from the other Party.
9. Processing of personal data
For the purposes of this clause 9:
“Data Protection Laws” means all applicable laws which govern the use of data relating to identified or identifiable individuals, including the GDPR, Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, as amended or replaced from time to time and to the extent applicable to a Party;
“GDPR” means (i) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“EU GDPR”) and (ii) the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force (“UK GDPR”); and
the terms controller, processor, data subject, personal data and processing, (and related expressions) shall have the meanings given to them in the Data Protection Laws.
The Customer acknowledges that AREX may process and use the personal data of the Customer’s contacts, signatories and Users as a controller for the purposes of invoicing and providing, developing and marketing the Service.
To the extent that the material provided by the Customer contains personal data, AREX shall process personal data as a processor on behalf of the Customer while the Customer remains the controller of such personal data. The nature and purposes of the processing to be undertaken, types of personal data, the categories of data subjects involved and the duration of the processing are set out in the Service Agreement.
Where AREX processes personal data on behalf of the Customer as a processor, AREX shall:
only process the personal data in accordance with the Customer’s written instructions from time to time, unless otherwise required by law, in which case, AREX shall (to the extent permitted by law) inform the Customer of that legal requirement before carrying out the processing;
take appropriate technical and organisational measures to ensure a level of security for the personal data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data;
not engage a sub-processor to process the personal data unless:
it has obtained prior written consent from the Customer; and
the proposed sub-processor has entered into a contract with AREX which imposes obligations on the sub-processor which are reasonably equivalent to those imposed on AREX in this clause 9.4;
For the avoidance of doubt, AREX shall remain liable for the acts and omissions of its sub-processors as if they were AREX’s own;
provide reasonable assistance to enable the Customer to (i) respond to any requests from data subjects in accordance with Data Protection Laws; and (ii) comply with its obligations under Articles 32 – 36 (Security, Breach Notifications, Data Protection Impact Assessments, Prior Consultation) of the GDPR or any other equivalent obligations under other Data Protection Laws. The Customer must submit any requests for assistance in writing and shall be liable to reimburse the reasonable costs and expenses incurred by AREX when providing such assistance;
upon expiration or termination of the provision of this Agreement, at the Customer’s choice, return and/or securely and erase all personal data in its possession or control unless AREX is required to retain personal data in order to comply with applicable laws;
on the Customer’s request, make available to the Customer all information, documentation and assistance reasonably required to enable the Customer to verify that AREX is in compliance with this clause 9.4 including, without limitation, an audit report which is no older than twelve (12) months;
permit the Customer (either itself or through third party auditors appointed by the Customer, subject to such third party auditors being bound by appropriate confidentiality obligations) to audit AREX’s compliance with this clause 9.4, subject to the time, date and scope of the audit being agreed by the Parties in advance; and
ensuring that all employees who are granted access to the personal data in order to meet AREX’s obligations under this Agreement are bound by appropriate confidentiality obligations when accessing it.
AREX has the right to collect, use, disclose and otherwise utilise anonymized customer data and other information obtained through the use of the Service. All proprietary and intellectual property rights relating to this information belong to AREX.
10. Limitation of liability
AREX shall ensure that the Service is materially in accordance with this Agreement and the Service Description. AREX shall use reasonable endeavours to maintain access and quality of the Service without disruptions and to correct any errors in the Service without undue delay. AREX does not guarantee or warrant that (i) the Service will be available, uninterrupted and error-free at all times, regardless of time and location; (ii) any defects or errors in the Service will be corrected; or (iii) the Service is free from viruses or other malware.
AREX is not responsible for the actions of Users when using the Service, the use of the Service is at the Customer’s own risk.
This Agreement sets out the full extent of AREX’s obligations and liabilities in respect of the design, development, delivery and provision of the Service. All conditions, warranties or other terms concerning the same which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
Neither Party seeks to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; for any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of this Agreement shall be read as subject to this clause 10.4 and no provision of this Agreement is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
The maximum liability of AREX to the Customer for all claims under or in connection with this Agreement howsoever arising shall be limited in aggregate to the value of the Fees actually paid by the Customer to AREX under this Agreement in relation to the particular transaction which gives rise to the claim.
In no event will either Party be liable to the other Party under this Agreement for loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or consequential, special or indirect loss or damage in any case, regardless of whether or not that Party was aware (or ought reasonably to have been aware) of the risk that such loss or damage might occur.
The Service does not include, and AREX is not responsible for any retention of any data or content on behalf of the Customer. The Customer is responsible for storing the information and taking back-ups. To the extent permitted by applicable law, AREX shall not be liable for any loss, destruction, alteration or associated costs of any data or content, such as costs related to the recovery or re-creation of files.
The Customer agrees and acknowledges that data which is provided or made available to the Customer in connection with the Service may be sourced from third parties (“Third Party Data”). AREX makes no representation or commitment that the Third Party Data is accurate, complete or up to date. AREX shall have no liability or obligation whatsoever in relation to the Customer’s use of or reliance on any Third Party Data.
11. Term of this Agreement
This Agreement shall commence upon signature by both Parties and will continue for the initial term of one (1) year. Upon expiration of the initial term this Agreement will automatically renew for additional one (1) year terms unless terminated by either Party no later than thirty (30) days before the end of the current term.
This Agreement may be terminated with immediate effect by written notification by either Party, if:
the other Party becomes insolvent or becomes the subject of voluntary or involuntary bankruptcy proceedings, is commenced by the other party under domestic or foreign bankruptcy or insolvency law; or
the other Party is in breach of the terms of this Agreement and does not rectify the breach within thirty (30) days of the other Party’s written notification to remedy the breach of this Agreement.
Without prejudice to any other rights or remedies available to it, AREX may terminate this Agreement with immediate effect or suspend access to the Service in whole or in part if the payment of the Fees or any other amounts to due AREX under this Agreement are overdue.
12. Other terms and conditions
Any notices to be served on either Party by the other shall be in writing and sent by pre-paid registered post to the address of the other Party as set out in the Service Agreement or such other address as is notified in writing by that Party from time to time. Such notice shall be deemed to have been received by the addressee 72 hours after posting provided applicable evidence of posting is retained and produced on request. Whilst the Parties may make operational communications concerning this Agreement via email, formal notice may not be served via email.
The Parties are with respect to each other independent contractors and nothing in this Agreement and no actions taken by the Parties under it shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the Parties.
This Agreement together with any documents referred to or incorporated into it in accordance with its terms represents the entire agreement between the Parties relating to its subject matter and supersedes all previous presentations made and/or agreements, negotiations and discussions between the Parties relating to the same.
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
The failure to exercise or delay in exercising any right or remedy under this Agreement shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies. No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or any other right or remedy.
A person who is not a party to this Agreement shall have not right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
AREX has the right to appoint subcontractors to provide the Service to the Customer. Subject to clause 10.8, when using a subcontractor, AREX is responsible for the subcontractor’s work as its own.
AREX has the right to use the Customer as a reference in marketing the Service.
Neither Party shall be liable for any delays or damages resulting from circumstances beyond its control which it could not reasonably be expected to have taken into account at the time of the conclusion of this Agreement and the consequences of which could not reasonably have been avoided or overcome. Strike, embargo, boycott and other collective action shall be considered force majeure when the Party itself is the subject of such action. Force majeure encountered by a party’s subcontractor shall also be considered as such circumstance.
Neither Party shall have the right to assign or transfer this Agreement or any of its rights or obligations in whole or in part, to a third party without the prior written consent of the other Party. AREX has the right to assign or transfer this Agreement to its affiliate or third party in connection with the sale of its business or a substantial part of the Service.
13. Dispute resolution
This Agreement shall be governed by English law and, save in respect of the enforcement of any judgment, the Parties agree to submit to the exclusive jurisdiction of the English courts.