FreeAgent Central Limited Standard Framework Agreement
IMPORTANT: THESE TERMS AND CONDITIONS, TOGETHER WITH EACH KEY FACTS DOCUMENT, FORM THE LEGAL AGREEMENT WHICH GOVERNS THE WAY IN WHICH YOU MAKE THE SERVICES AVAILABLE TO YOUR CLIENTS. BY ACCEPTING THESE TERMS AND CONDITIONS, BY USING THE SERVICES, OR BY MAKING THE SERVICES AVAILABLE, YOU AGREE TO BE BOUND BY THEM AND AGREE TO BIND YOUR EMPLOYEES. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, WE ARE UNWILLING TO GRANT YOU THE RIGHTS TO MAKE THE SERVICES AVAILABLE TO YOUR CLIENTS.
The terms and conditions are entered into by (i) FreeAgent Central Limited, a company registered in Scotland with company number SC316774 and having its registered office at One Edinburgh Quay, 133 Fountainbridge, Edinburgh EH3 9QG(“FreeAgent”); and (ii) the partner whose details are set out in the Key Facts Document and on whose behalf these terms and conditions are accepted (the “Partner”).
Terms and Conditions
The “Services” are the FreeAgent Software and/or Third Party Services. The Services can be made available to and/or accessed by or provided to the clients of the Partner (“Clients”) in accordance with these terms and conditions and each key facts document provided by FreeAgent to the Partner “Key Facts Document”.
These terms and conditions together with the details set out in the first Key Facts Document shall form the “Framework Agreement” between FreeAgent and the Partner. The Framework Agreement shall come into effect when the Partner first accepts these terms and conditions, first uses the Services or first makes the Services available (whichever occurs earlier) and, subject to clauses 8.1 or 8.2 below, shall continue in force for the Initial Term set out in the first Key Facts Document and thereafter for additional periods of twelve (12) months (“Renewal Term”) unless or until terminated by either party giving to the other not less than three (3) months' written notice prior to the end of the Initial Term or the current Renewal Term. The rates set out in the attached Key Facts Document will apply during the Initial Term only. FreeAgent’s standard rates set out below will apply during any Renewal Term unless otherwise agreed in writing with FreeAgent.
Until the Framework Agreement expires or is terminated, FreeAgent and the Partner may enter into specific “Agreements” comprising these terms and conditions and the details set out in each Key Facts Document, (including, for the avoidance of doubt, the first Key Facts Document) in relation to the Services set out in that Key Facts Document. Each Agreement between FreeAgent and the Partner shall be concluded and shall become binding on FreeAgent and the Partner when the Partner accepts these terms and conditions again, uses the Services set out in that Key Facts Document or makes the Services set out in that Key Facts Document available (whichever occurs earlier). Each Agreement shall continue until the expiry of the Framework Agreement unless that Agreement is terminated in accordance with clauses 8.1 or 8.2 below.
In the event of any conflict between the terms of these terms and conditions and a Key Facts Document, the terms of the Key Facts Document shall prevail. In the event of any conflict between any Key Facts Document, the terms of the earliest Key Facts Document shall prevail. The Framework Agreement and each Agreement shall govern the Partner making the Services available to its Clients to the exclusion of all other terms and conditions which may have been submitted by the Partner or subject to which the relevant Key Facts Document is accepted or purported to be accepted by the Partner.
In these terms and conditions:
- “FreeAgent Software” means the online software applications of FreeAgent provided to Users by the Partner as set out in the Key Facts Document;
- “Intellectual Property” means any and all intellectual property rights, including, without limitation, patent, copyright, design, trade name, trade mark, service mark or other intellectual property right (whether registered or not) including without limitation know-how and confidential information in respect of the Services and any applications for any of the foregoing; and
- “Third Party Services” means services provided by the Third Party Service Providers from time to time as set out in the Key Facts Document made available by third parties (“Third Party Service Providers").
Any and all defined terms used in this Agreement shall have the definitions given to them in these terms and conditions or the relevant Key Facts Document.
1. Appointment of Partner
- 1.1 The Partner may procure and/or make the Services (or any or both of them) available from time to time in the territory set out in the first Key Facts Document (the “Territory”) (subject to clause 2.3.1) to its Clients in accordance with the terms and conditions of this Framework Agreement. The Partner’s appointment under this Framework Agreement is non-exclusive.
- 1.2 Accordingly FreeAgent grants to the Partner a non-exclusive, non-transferable, licence to distribute, make available and/or procure to its Clients the Services (subject to clause 2.3.1) during the Initial Term and any Renewal Term(s) in accordance with the terms and conditions of this Agreement but for no other commercial or internal purpose. When a Client uses or has confirmed that they would like to use or receive (as relevant) the Services in accordance with this Agreement, they shall be referred to as a “User”.
- 1.3 The Partner acknowledges that FreeAgent is not the provider of the Third Party Services and so any use or distribution by the Partner of those must be in accordance with the terms of service of the Third Party Service Providers in relation to the making available of the Third Party Services to be entered into by the Partner. The Partner undertakes to enter into and comply with those terms of service.
2. Sale of Services
- 2.1 The Partner shall maintain a list of Users, including, without limitation, details of the Services made available and/or received by each User and shall, from time to time, at the request of FreeAgent, promptly supply it with a copy of such list.
- 2.2 The Partner shall:
- 2.2.1obtain and maintain all such licences, consents and approvals as may be required in connection with the making available and/or procurement of the Services in the Territory;
- 2.2.2 keep full and accurate records of all enquiries and transactions relating to the Services, and from time to time permit FreeAgent access to such records for the purpose of inspecting the same; and
- 2.2.3 ensure that, within three (3) months of this Framework Agreement coming into effect (as provided above), at least one of its employees undertakes the free, online, accreditation course provided by FreeAgent located at http://www.freeagent.com/accountants/partner-programme and passes the subsequent free, online exam. FreeAgent reserves the right to cease making the Partner Service available to the Partner and/or the FreeAgent Software available to any Users in the event that the Partner fails to comply with this Clause 2.2.3
- 2.3 The Partner shall not:
- 2.3.1 be entitled to license or to enter into any contracts on behalf of FreeAgent and/or any Third Party Service Provider, as relevant, including, without limitation, for the making available and/or procurement of the Services or to bind or incur liabilities on behalf of FreeAgent and/or any Third Party Service Provider, as relevant, in any way;
- 2.3.2 hold itself out or permit any person to hold itself out as being authorised to bind FreeAgent and/or any Third Party Service Provider, as relevant in any way and clearly indicate in all dealings that relate to the Services that it is not authorised to bind FreeAgent and/or any Third Party Service Provider, as relevant, in any way;
- 2.3.3 do any act which might reasonably create the impression that it is authorised to do any of the acts referred to in clauses 2.3.1 and 2.3.2 above;
- 2.3.4 pledge the credit of FreeAgent and/or any Third Party Service Provider, as relevant, in any way;
- 2.3.5 engage in any conduct which in the reasonable opinion of FreeAgent is prejudicial to FreeAgent and/or any Third Party Service Provider, as relevant, their businesses or reputations or the commercial exploitation or reputation of the Services;
- 2.3.6 do anything which could reasonably be expected to damage, disable, overburden, or materially impair the Services or FreeAgent’s website generally or which is likely to interfere with any other party's use or enjoyment of the Services;
- 2.3.7 use, receive, make available or procure as relevant, the Services in preparation for becoming a competitor of FreeAgent and/or any Third Party Service Provider, as relevant, or otherwise for the purpose of conducting any benchmarking or comparison with any comparable or competing product.
- 2.4 The Partner grants to FreeAgent the right to use its name and any trade mark in respect thereof on its website in connection with the promotion of the Services and its business subject to the other terms of this Agreement and for the purpose of fulfilling its obligations under this Agreement.
3. Making the Services Available
- 3.1 The Partner shall bring to the notice of all potential Users:
- 3.1.1 the FreeAgent terms of service to be entered into by the Users in relation to the FreeAgent Software as provided to the Partner or, if different, such form as specified in the relevant Key Facts Document (the “FreeAgent Terms of Service”) and/or the terms of service of the Third Party Service Providers to be entered into by the Users in relation to the Third Party Services (“Third Party Terms of Service”) as relevant (together the “Terms of Service”);
- 3.1.2 that the Services will be made available or provided, as relevant to them subject to their acceptance of the FreeAgent Terms of Services and/or the Third Party Terms of Service, as relevant;
- 3.1.3 that the Terms of Service will be entered into by the User with FreeAgent or the Third Party Service Provider as relevant and not the Partner; and
- 3.1.4 any amendments made to the relevant FreeAgent Terms of Service by FreeAgent from time to time.
- 3.2 The Partner shall not make or give any warranties, guarantees or representations concerning the Services unless such warranties, guarantees or representations have been previously approved in writing by FreeAgent and/or Third Party Service Providers as relevant or is contained in literature published by and provided to the Partner by FreeAgent and/or Third Party Service Providers, as relevant.
- 3.3 The Partner and its staff shall, subject to compliance with the terms of this Agreement and the FreeAgent Terms of Service be entitled to use the Partner Service for the purposes of making the Services available, of creating and administering User accounts and assisting Users in their use, or receipt as relevant, of the Services. Accordingly, the Partner undertakes to enter into and comply with the FreeAgent Terms of Service which will govern its use of the Partner Service. “Partner Service” means the non-exclusive, non-transferable, non-sublicensable and limited access to and use of certain FreeAgent software including, without limitation, the Accountant Dashboard.
- 3.4 The Partner shall procure that all its agents and employees who use the Partner Service are aware of and agree to abide by the terms of this Agreement together with the FreeAgent Terms of Service.
- 3.5 The Partner shall indemnify FreeAgent in respect of any losses, liabilities, damages, costs and expenses that may arise from a failure by the Partner and its staff, to comply with its obligations under this clause 3 and, where relevant, as a result of the Partner making the Third Party Services available. FreeAgent undertakes to use reasonable endeavours to mitigate its losses, liabilities, damages, costs and expenses that may arise from a failure by the Partner and its staff to comply with its obligations under this clause 3 and, where relevant, as a result of the Partner making the Third Party Services available.
- 3.6 The Partner acknowledges that FreeAgent may need to contact the Users from time to time and accordingly the Partner shall promptly provide FreeAgent, from time to time, any and all reasonably requested contact details relating to such Users. The Partner shall ensure such Users consent to FreeAgent using their details and contacting them from time to time for various purposes relating to the Services, including without limitation, advising Users of updates to the Services and notifying them of scheduled downtime and maintenance of any Services.
4. Intellectual Property Rights
- 4.1 The Partner shall promptly and fully notify FreeAgent of:
- 4.1.1 any actual, threatened or suspected infringement or wrongful use of any Intellectual Property of FreeAgent and/or the Third Party Service Provider as relevant which comes to the Partner's notice; and
- 4.1.2 any claim by any third party coming to its notice that the making available and/or procurement of the Services infringes the rights of any other person.
- 4.2 The Partner shall at the request and expense of FreeAgent do all such things as may be reasonably required to assist FreeAgent in taking or resisting any proceedings in relation to any infringement, wrongful use or claim referred to in clause 4.1 above and/or to assist FreeAgent to assist the Third Party Service Provider, as relevant, in taking or resisting any proceedings in relation to any infringement, wrongful use or claim referred to in clause 4.1 above.
- 4.3 Nothing in this Agreement shall give the Partner any rights in respect of the Intellectual Property of FreeAgent and the Partner hereby acknowledges that it shall not acquire any rights in respect thereof and that all such Intellectual Property is and shall remain vested in FreeAgent. Notwithstanding the foregoing, the Partner agrees and undertakes not to purchase, attempt, or offer, to purchase or in any way bid for the terms “FreeAgent” “FreeAgent Central” on AdWords, BingAds or any other search engine marketing platforms and to add "FreeAgent" as a negative keyword to any search campaigns.
- 4.4 Any goodwill which the Partner purports to derive from the use of any of the Intellectual Property of FreeAgent, including, without limitation, the making available and/or procurement of the FreeAgent Software or by reason of the Partner being associated with FreeAgent shall accrue to and belong to FreeAgent. Accordingly the Partner hereby assigns to FreeAgent its full right, title and interest in and to any and all goodwill generated by the Partner in relation to its use of the Intellectual Property, including, without limitation, that generated in relation to: (a) any trade marks beneficially owned by FreeAgent and/or registered in the name of FreeAgent; and (b) such other trade marks as are used by FreeAgent on or in relation to its software at any time during the term of this Agreement (the “Trade Marks”). “Branding” also means any and all Intellectual Property, including without limitation, trademarks, logos and slogans relating to any of the Services and either FreeAgent or any Third Party Service Provider as relevant.
- 4.5 To enable the Partner to make available FreeAgent Software, FreeAgent hereby grants the Partner a non-exclusive, non-transferable, non-sublicensable limited licence to use the Trade Marks in the Territory in relation to making the Services available only and for the purposes only of exercising its rights and performing its obligations under this Agreement and for no other purpose whatsoever and subject always to its compliance with the provisions of clause 4.9 below. For the avoidance of doubt, FreeAgent reserves the right to grant further licences of the Trade Marks to any other person, firm or company whether or not in the Territory.
- 4.6 FreeAgent makes no warranties to the Partner with respect to the Trade Marks and its Branding and no warranties of any kind, whether written, oral, implied or statutory, including warranties of non-infringement or usage arising from a course of dealing or usage shall apply.
- 4.7 The Partner shall indemnify FreeAgent fully against all liabilities, costs and expenses which FreeAgent incurs as a result of the Partner’s use of the Trade Marks.
- 4.8 Where the Services and Software contain the Branding of FreeAgent or a Third Party Service Provider, including without limitation, the Trade Marks, the Partner agrees and undertakes not to amend or remove such Branding or the Trade Marks in any way or at any time.
- 4.9 The Partner hereby undertakes in respect of the Trade Marks that:
- 4.9.1 the use of the Trade Marks by it shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by FreeAgent and the Partner shall forthwith cease any use not consistent therewith as FreeAgent may require;
- 4.9.2 it shall use the ® or ™ symbols (as legally applicable) on all materials which use the Trade Marks as requested by FreeAgent from time to time;
- 4.9.3 it shall not do or authorise to be done any act which would or might jeopardise or invalidate the registration of the Trade Marks nor do any act which might assist or give rise to an application to remove the Trade Marks from any register or which might prejudice the right of or title of FreeAgent to the Trade Marks;
- 4.9.4 it will on request give to FreeAgent or its authorised representative any information as to its use of the Trade Marks which it may reasonably require including without limitation samples of any matter featuring the Trade Marks and shall make any reasonable alterations requested by FreeAgent;
- 4.9.5 it shall use the Trade Marks in the forms stipulated by FreeAgent and shall observe any directions given by FreeAgent as to colours and size of the representations of the Trade Marks and their manner and disposition on any leaflets, brochures or other material, and in any advertising material prepared by or on behalf of the Partner; and
- 4.9.6 it shall not register or apply to register the Trade Marks in an additional class or classes within the Territory or otherwise.
5. The rights and duties of FreeAgent
- 5.1 FreeAgent shall be entitled:
- 5.1.1 to reject any User or proposed User of the FreeAgent Software introduced by the Partner and to refuse to grant access to the FreeAgent Software in respect thereof;
- 5.1.2 from time to time to extend or amend the scope of the FreeAgent Software or discontinue or amend any aspect of the same; and
- 5.1.3 in its sole discretion, to delete any or all data of a User which is classified as "inactive" by the Partner for a consecutive period of six (6) months. FreeAgent shall not be obliged to notify the User of such intended deletion [and shall use reasonable endeavours to notify the Partner of such deletion in advance]. The Partner acknowledges that it is the Partner’s and / or the User’s responsibility to back up any and all data and accordingly, FreeAgent shall not be responsible for any loss, expense, damage, costs or expenses of any nature whatsoever incurred or suffered by the Partner or a User as a result of FreeAgent exercising its rights under this Clause 5.1.3. Furthermore, the Partner undertakes to notify each relevant User of its classification as “inactive” and the potential resulting consequences of such classification as set out in this Clause 5.1.3
- 5.2 FreeAgent shall:
- 5.2.1 make the Partner Service available to the Partner subject to the terms of this Agreement and the FreeAgent Terms of Service;
- 5.2.2 make the FreeAgent Software available to the User subject to the FreeAgent Terms of Service;
- 5.2.3 provide the Partner with five (5) days’ notice (where reasonably practicable and legally permitted), in the event that FreeAgent is requested by a third party accountant for the User’s data as a result of that User potentially ceasing to be a Client. Notwithstanding the foregoing, in the event that FreeAgent receives authorisation from a User to transfer their data to a third party accountant, it shall, in its sole discretion, comply with such request; and
- 5.2.4 where FreeAgent receives written authorisation from the User and any relevant third party to do so, provide the Partner with limited access to read and use certain of the User’s existing data held by FreeAgent in a separate account (whether as part of: (i) a direct FreeAgent account held by that User; or (ii) the account of a FreeAgent reseller). For the avoidance of doubt, while the Partner is given access to a User’s data held in a separate FreeAgent account, the Partner shall not (and shall not be given rights to) amend the permissions or access rights of that separate account.
- 5.3 Under the terms of the EU General Data Protection Regulation (GDPR), FreeAgent's pre-signed Data Processing Addendum (DPA) is available to download from this link for your record-keeping.
6. Financial provisions
- 6.1 In consideration of the rights granted to the Partner, the Partner shall pay to FreeAgent the rates as defined in their Partner Key Facts document, applied according to the number of Users permitted to access and use the Service that month.
- 6.2 Unless otherwise expressly agreed with FreeAgent, all payments due by the Partner under this Agreement shall be:
- 6.2.1 made by way of Direct Debit and accordingly the Partner hereby undertakes to arrange such payment to FreeAgent through GoCardless Limited (company number 07495895), FreeAgent’s third party service provider, and authorises FreeAgent to arrange payment of the sums due by the Partner under this Agreement from the Partner’s bank account provided to GoCardless; and
- 6.2.2 made on approximately the 6th day of the month for the sums due in relation to the previous month.
- 6.3 The Partner hereby authorises FreeAgent to arrange payment of any resultant increased sums due by the Partner under this Agreement when they take effect through GoCardless.
- 6.4The Partner warrants and confirms that the person accepting these terms on behalf of the Partner is authorised to do so and is authorised to give FreeAgent the authorisations noted at clauses 6.2.1 and 6.3 above.
- 6.5 If any sum due to FreeAgent is not paid when due, FreeAgent reserves the right to suspend the Partner’s access to the Partner Service and/or the provision of the rights granted under this Agreement and/or the provision of the Service to be provided by FreeAgent and/or the access to the Service by Users until the balance is paid and close the Partner's FreeAgent account permanently without further notice. Without prejudice to FreeAgent’s remedies under this Clause 6, where payment is made by Direct Debit, FreeAgent may, but shall not be obligated to, notify the Partner that such sum has been not been paid when due.
- 6.6 FreeAgent reserves the right to charge the Partner interest in respect of the late payment of any sums due under this Agreement (whether before or after judgment) at the rate of 5 per cent above the base rate from time to time of Barclays Bank plc from the due date therefor until payment.
- 6.7 The Partner shall pay the sums due to FreeAgent hereunder without any deduction, withholding or set off other than such amount (if any) as is required to be deducted by law in which case the sum paid by the Partner to FreeAgent shall be increased to the extent necessary to ensure that after such deduction, withholding or set off FreeAgent receives an amount equal to the sum it would have received had no such deduction, withholding or set off been required.
All prices exclude VAT.
FreeAgent reserves the right to increase the sums due by the Partner by providing the Partner with four (4) months’ written notice prior to the end of the Initial Term or Current Renewal Term (as relevant). Any price increases shall take effect in the subsequent Renewal Term.
- 7.1 Except as provided by clauses 7.2 and 7.3 the Partner shall at all times during the currency of this Agreement and thereafter:
- 7.1.1 use its best endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and
- 7.1.2 not use any Restricted Information for any purpose other than the performance of its obligations under this Agreement, and in particular, without limiting the generality of the foregoing, the Partner shall not use any Restricted Information in connection, directly or indirectly, with the development, promotion or licensing of any computer software or service which competes with any of the Services.
- 7.2 Any Restricted Information may be disclosed by the Partner to any Users or potential Users, any governmental or other authority or regulatory body, any employees of the Partner or of any of the aforementioned persons, to such extent only as is necessary for the purposes contemplated by this Agreement or as is required by law and subject in each case to the Partner using all reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure was made.
- 7.3 Any Restricted Information may be used by the Partner for any purpose or disclosed by the Partner to any other person to the extent that:
- 7.3.1 it is at the date hereof or hereafter becomes public knowledge through no fault of the Partner provided that in doing so the Partner shall not disclose any Restricted Information which it not public knowledge; or
- 7.3.2 it can be shown by the Partner to the reasonable satisfaction of FreeAgent to have been known to the Partner prior to its being disclosed by FreeAgent to the Partner.
“Restricted Information” means any commercial, financial, technical or other information of a confidential or proprietary nature in relation to FreeAgent or a third party (including but not limited to trade secrets, formulae, processes, ideas and inventions, specifications, designs, financial or business information, customer details, market research and pricing strategies) which is disclosed to the Partner by FreeAgent pursuant to or in connection with this Agreement (whether orally or in writing or through access afforded to the Partner Service and whether or not such information is expressly stated to be confidential or marked as such);
8. Duration and termination
- 8.1 FreeAgent shall be entitled to terminate this Agreement:
- 8.1.1 as expressly provided for elsewhere in this Agreement; or
- 8.1.2 where it has terminated the access to the Partner Service in accordance with the FreeAgent Terms of Service ; or
- 8.1.3 by giving not less than seven (7) days' written notice to the Partner if there is a change in the beneficial ownership of more than 50% of the Partner’s issued share capital or the legal power to direct or cause the direction of the Partner’s general management;
- 8.1.4 in the event that the Partner questions or disputes FreeAgent’s ownership or right to the Trade Marks or Intellectual Property in any of the Services.
- 8.2 Without prejudice to the other provisions of this Agreement, either party shall be entitled to terminate this Agreement if the other:
- 8.2.1 commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to remedy the same; or
- 8.2.2 if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation reconstruction) or in the case of the Partner upon the occurrence of any event analogous to any of the above.
- 8.3 Any termination of this Agreement pursuant to this clause 8 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to clauses 2.3, 3.2, 3.3, 3.5, 3.6, 4.2, 4.3, 4.4, 4.6, 4.7, 4.9, 7, 8.3, 9, 10, 11 and 12 (inclusive).
9. Consequences of termination
- 9.1 Upon the termination of the Framework Agreement (and not an individual Agreement) for any reason:
- 9.1.1 the Partner shall within 30 days thereof send to FreeAgent or otherwise dispose of in accordance with the directions of FreeAgent all materials relating to the Services then in the possession of the Partner;
- 9.1.2 the Partner shall cease to make available and/or procure the Services to its Clients;
- 9.1.3 any Agreements formed under this Framework Agreement prior to the date of termination shall continue in full force and effect in accordance with its terms and the terms of this Framework Agreement;
- 9.1.4 the Partner shall no longer be entitled to use the Partner Service or FreeAgent Software as permitted under this Framework Agreement;
- 9.1.5 any and all sums due but not yet payable under this Framework Agreement shall become immediately due and payable; and
- 9.1.6 the Partner shall make no claim against FreeAgent for compensation for loss of agency rights loss of goodwill or any similar loss if and to the extent the Commercial Agents (Council Directive) Regulations 1993 apply.
- 9.2 The parties agree and acknowledge that termination of any Agreement in accordance with the terms of this Framework Agreement shall not affect the validity of any other Agreement or the Framework Agreement which shall continue in full force and effect in accordance with their terms.
- 9.3 Upon termination of an Agreement in accordance with its provisions:
- 9.3.1 the Partner shall within 30 days thereof send to FreeAgent or otherwise dispose of in accordance with the directions of FreeAgent all materials relating to the relevant Services then in the possession of the Partner;
- 9.3.2 the Partner shall cease to make available and procure the Services set out in the relevant Key Facts Document to the relevant Users;
- 9.3.3 the Users shall immediately cease using and/or receiving the Services provided thereunder;
- 9.3.4 any and all sums due but not yet payable in relation to that Agreement shall become immediately due and payable; and
- 9.3.5 the Partner shall make no claim against FreeAgent for compensation for loss of agency rights loss of goodwill or any similar loss if and to the extent the Commercial Agents (Council Directive) Regulations 1993 apply.
- 9.4 For the avoidance of doubt, the rights of termination which are available to FreeAgent or the Third Party Service Provider set out in the relevant Terms of Services shall apply to the relevant Service only and shall not apply to the relevant Agreement as whole or this Framework Agreement, notwithstanding the termination provisions applicable to that Agreement or this Framework Agreement.
- 9.5 The costs incurred by the Partner in complying with clause 9.1 above shall where the termination is by the Partner pursuant to clause 8.2 above be for the account of FreeAgent and in any other case be for the account of the Partner.
- 9.6 If the Partner receives any enquiries before or after termination of this Framework Agreement relating to the transfer of any User’s account on the FreeAgent Software they will promptly pass the same on to FreeAgent.
- 10.1 IMPORTANT: This section restricts the extent to which FreeAgent is liable for any losses which may be suffered by the Partner in connection with its use of the Services or under this Agreement.
- 10.2 The Services are provided on an “as is” and “as available” basis and accordingly, FreeAgent makes no guarantee that the Services will be suitable for the Partner’s, or their Clients’, intended use, neither does FreeAgent guarantee that it will be error-free, timely, reliable, entirely secure, virus-free or available, especially since its use is dependent on the reliability of the Internet and use of third party computer equipment and software to access the Software. FreeAgent will use reasonable endeavours to keep disruptions to a minimum but FreeAgent may suspend the FreeAgent Software from time to time to carry out maintenance and support work and to investigate unauthorised use. Where relevant, the Partner acknowledges that the Third Party Service Providers may also need to suspend the Third Party Services from time to time and that FreeAgent is not liable for any loss, damage to expense caused as a result. The Software is not a substitute for a professional accountant and any information presented within the Software does not constitute accounting advice.
- 10.3 The Partner and its Clients use, and receive as relevant, the Services entirely at their own risk. FreeAgent does not restrict its liability (if any) for personal injury or death resulting from FreeAgent’s negligence, for fraud committed by FreeAgent or for any matter which it would be illegal to limit or to attempt to restrict. FreeAgent excludes all other liability and responsibility for any amount or kind of loss or damage arising in connection with the Services (even if FreeAgent has been advised of their possibility).
- 10.4 In no circumstance shall FreeAgent be liable for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Partner that is: (i) of an indirect, special or consequential nature; or (ii) any loss of profits, revenue, business opportunity or goodwill.
- 10.5 Where FreeAgent is not legally entitled to exclude its liability, its total liability for any loss or damage under this Agreement shall not exceed an amount equal to the fees which the Partner has paid to FreeAgent under this Agreement which the parties agree is reasonable in the circumstances.
- 10.6 The Partner shall be held liable for and shall indemnify and hold harmless FreeAgent from any losses, damages liabilities, costs and expenses incurred by FreeAgent as a result of breach of this Agreement by the Partner.
- 11.1 Neither party to this Agreement shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, accidental or malicious damage, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
- 11.2 Each of the parties to this Agreement agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
- 11.3 If a default due to an Event of Force Majeure shall continue for more than twelve (12) weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
- 11.4 The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
- 11.5 Any notice request instruction or other document to be given hereunder shall be in writing and shall delivered or sent by first class post to the address of the other party set out in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) and upon the expiration of forty eight (48) hours after posting.
- 11.6 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
- 11.7 This Agreement constitutes the entire agreement between the parties in connection with its subject matter. FreeAgent shall not be liable to the Partner for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations agreements, statements and undertakings expressly incorporated or referred to in this Agreement.
- 11.8 Nothing in this Agreement is intended to exclude a party's liability for fraud or fraudulent concealment.
- 11.9 This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto. FreeAgent shall be entitled to assign this Agreement and all or any of its rights and obligations hereunder. The Partner shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior written consent of FreeAgent, such consent not to be unreasonably withheld or delayed.
- 11.10 Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of employer and employee between the parties.
- 11.11 The Partner shall comply with all laws, statutes and regulations in the Territory concerning making the Services available and with all and any conditions binding on it in any licences, registrations, permits and approvals necessary or advisable for the importation/exportation making the Services available in the Territory.
- 11.12 The Partner acknowledges and recognises that FreeAgent and the Partner may be subject to anti-terrorism legislation, and/or the United Kingdom’s Bribery Act 2010 (each as may be amended from time to time). Accordingly, the Partner hereby covenants, agrees, represents and warrant to FreeAgent it shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and shall promptly report to FreeAgent any request or demand for any undue financial or other advantage of any kind received by the Partner in connection with the performance of this Agreement.
- 11.13 A breach of Clauses 11.11 and 11.12 by the Partner shall be deemed material and FreeAgent shall have the right to terminate this Agreement in accordance with Clause 8.
12. Governing law and submission to jurisdiction
- 12.1 This Agreement shall be governed by and construed in accordance with English law.
- 12.2 The Partner hereby irrevocably submits to the exclusive jurisdiction of the English Courts for the purpose of hearing and determining any dispute arising out of this Agreement and for the purpose of enforcement of any judgment against its assets.