In these Terms and Conditions, the following defined terms shall have the meanings ascribed:
“Anonymised Data” means data about the Customer or the Customer’s operations obtained by Winnow during the provision of the Services, without any information specifically identifying the Customer or its clients and not including any information that relates to an identified or identifiable person;
“Applicable Price Index” means the most recent index value or annual value of the EU HICP rate for Contracts denominated in Euros, the UK Consumer Prices Index for Contracts denominated in British Pounds, and the US Consumer Price Index for Contracts denominated in US dollars or any other currency, or a similar successor to such index if discontinued.
“Bespoke Goods” means Goods which are produced or sourced specifically for a Customer and which Winnow in its sole discretion has determined are bespoke;
“Contract” means a contract between Winnow and the Customer for the purchase, or the lease, of certain Goods and/or the subscription for or purchase of certain Services, which shall be formed upon the earliest of
(i) the Customer entering into a Sales Quote
(ii) the Customer proposing a purchase order which Winnow accepts in writing, or
(iii) the Customer accepting delivery of any of the Products to the Customer, and the terms of such contract shall comprise such Sales Quote or purchase order, these Terms and Conditions and, where relevant, the terms of any Master Services Agreement between the Customer and Winnow;
“Customer” means any natural person, firm, company or other legal entity which places an order, or buys, leases or subscribes for any Products from Winnow;
“Delivery Date” means any date on which Winnow has agreed to provide Products to the Customer;
“Disclosing Party” has the meaning given in Condition 18.1;
“Goods” means any equipment agreed in the Contract to be supplied by Winnow to the Customer, whether by way of sale or lease;
“Group” means a Party, or any of its subsidiaries or holding companies from time to time, or any subsidiary of any holding company of such Party;
“Intellectual Property Rights” means (i) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names and email addresses, copyrights, database rights, know-how, rights in designs and inventions; (ii) rights under license, consent, orders, statute or otherwise to the same; and (iii) the right to sue for past infringements of any of the foregoing rights; as may exist now or in the future;
“Installation” means the erection, installation and/or positioning of any Goods or related equipment by Winnow or its agents;
“Minimum Period” means the period of 36 months following the commencement date set out in the relevant Contract in respect of a Subscription Service, unless agreed otherwise;
“Party” means Winnow or the Customer, and “Parties” shall be construed accordingly;
“Products” means any Goods and/or Services agreed in the Contract to be supplied by Winnow to the Customer;
“Receiving Party” has the meaning given in Condition 18.1;
“Sales Quote” means the document containing the specific Goods and/or Services ordered by a Customer, including any specifications or customisations, and their price, as agreed between a Customer and Winnow and delivered to Winnow;
“Services” means any services agreed in the Contract to be supplied by Winnow to the Customer, including, for the avoidance of doubt, Subscription Services;
“Subscription Services” means any software-as-a-service subscriptions and any other subscriptions between a Customer and Winnow;
“Site” means the named location(s) where the Goods will be used as stated in the Contract;
“Terms and Conditions” means these terms and conditions, and a Condition shall be construed accordingly;
“Third Party Claim” has the meaning given in Condition 7.2;
“User” means any employees, contractors or agency workers of the Customer which are designated, trained or permitted by the Customer to use any of the Products on a day-to-day basis;
“Winnow” means Winnow Solutions Limited or the entity in Winnow’s Group that has negotiated or entered into and signed the Contract with the Customer, as appropriate; and
“Withholdings” has the meaning given in Condition 5.8.
These Terms and Conditions shall apply in place of and prevail over any terms and conditions contained or referred to in any communication to or from the Customer or implied by trade, custom, practice or course of dealing; EXCEPT that, to the extent that any terms set out in a Sales Quote which has been provided by Winnow amends a specified section of these Terms and Conditions, the terms of such Sales Quote shall take precedence to the extent of the contradiction. Other purported terms and conditions which the Customer seeks to impose or incorporate are expressly rejected by Winnow.
3.1. A Contract shall be formed in accordance with, and constituting such terms, as is set out in the definition thereof.
3.2. The Customer is responsible for ensuring that the terms of any Sales Quote or purchase order are complete and accurate.
3.3. The pricing made available by Winnow to the Customer during the course of any contract discussions or negotiations shall not constitute an offer. Winnow in its absolute discretion may amend its prices at any time prior to a Contract taking effect.
3.4. Each Contract is subject to the availability of stock and resources and Winnow reserves the right to vary or alter the specification of the Products without notice provided such variation or alteration will not materially alter the performance of the Products.
3.5. The Contract constitutes the entire agreement between the Parties and the Customer acknowledges that it has not relied on, and shall have no remedies in respect of, any statement, promise or representation made or given by, or on behalf of, Winnow which is not set out in the Contract.
3.6. Any drawings or descriptions contained in any of Winnow’s brochures or on Winnow’s website are produced for the sole purpose of giving an approximate idea of the Products. They shall not form part of the Contract nor have any contractual force.
4.1. Subject to Conditions 4.2 and 4.3 below, title in, and accordingly, the risk of loss or damage to the Goods, shall pass to the Customer upon delivery to the Site (or such other of the Customer’s premises as is specified for delivery), or upon collection by the Customer, of the Goods.
4.2. Where the Goods are leased by the Customer, title in the Goods shall not pass to the Customer at any point before, during or after the lease.
4.3. Where the Goods are purchased by the Customer, title in the Goods shall only pass to the Customer when Winnow has received in full (in cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to Winnow from the Customer under the Contract or on any other account.
5.1. All sums payable in respect of any Products must be paid without deductions within 30 days from the date on which the invoice was raised, unless otherwise agreed in writing between Winnow and the Customer.
5.2. Failure by the Customer to pay any invoice by its due date shall entitle Winnow to suspend the delivery of all unexecuted or future orders and the provision of any Services under a Contract with the Customer.
5.3. Any recurring subscription fees for Services shall be invoiced to the Customer by Winnow in advance of, and payable prior to, each period to which they relate.
5.4. Winnow reserves the right in its absolute discretion to refuse to provide any Products in advance of the relevant invoice being paid.
5.5. If the Customer fails to pay any part of an invoice by the relevant due date and without limiting Winnow’s other remedies under these Terms and Conditions, Winnow reserves the right to charge interest on the overdue sum from the due date until payment of the overdue sum in accordance with its statutory right to claim interest and compensation for debt recovery under any relevant late payment legislation, or, in the absence of such legislation applying, at a rate of eight per cent. a year above the Bank of England’s base rate.
5.6. If any amounts owing to Winnow remain overdue for more than 30 days, Winnow shall be entitled to terminate any Contract pursuant to which such amounts are owing without any liability to the Customer. Upon termination, all amounts owing from the Customer to Winnow shall become immediately due and payable, including any Products delivered but not yet paid for notwithstanding any previous agreement to the contrary.
5.7. Except as expressly stated in the Contract, all prices are exclusive of packaging, transport, delivery, Winnow employee travel, accommodation and other incidental costs, and any sales, excise, or other duties, levies, or value added tax applicable in the relevant jurisdictions. Such additional charges will be invoiced by Winnow to the Customer accordingly.
5.8 prices for subscription services are valid for the duration of the subscription, subject to indexation for inflation/deflation effective on the first day of each calendar year, based on the Applicable Price Index.
5.9. All sums payable by the Customer under a Contract shall be paid free and clear of any deductions, withholdings, set-offs or counterclaims (together “Withholdings”), save only as may be required by applicable law. If any Withholdings are required by applicable law, the amount that the Customer is obliged to pay shall be increased to an amount which would leave Winnow with the same amount as Winnow would have been entitled to receive in the absence of a requirement to make such Withholding.
5.10. All payments are due in immediately available funds in the currency specified in the Sales Quote to Winnow’s nominated bank account. Winnow, at its sole discretion, may accept deviations, including, but not limited to, alternative currency payments and cheque payments. Winnow reserves the right to apply any applicable payment processing fees and other costs that it incurs in respect of any payment.
5.11. In the event of late payment, Winnow may, without notice to the Customer, set off any liability of the Customer to Winnow against any liability that Winnow has to the Customer, whether either liability is present or future, liquidated or unliquidated and whether or not either liability arises under the Contract. Any exercise by Winnow of these rights shall not limit or affect any other rights or remedies available to it under a Contract or otherwise.
5.12. The Customer shall be liable to pay for any Products ordered by an account in its name upon receipt of an invoice from Winnow and in accordance with this Condition 5.
6.1. Delivery Dates set out in the Contract, or otherwise specified by Winnow, are estimates only and shall under no circumstances be deemed firm deadlines, unless Winnow explicitly confirms in writing that a certain Delivery Date is binding. Winnow shall not be liable for any loss or damage whatsoever arising as a result of a delay or failure to deliver any Products by a particular date, unless explicitly stipulated in the Contract. Time for delivery shall not be of the essence unless otherwise agreed by Winnow in writing.
6.2. Without prejudice to any other right or remedy available to Winnow, should the Customer fail to take delivery or fail to give Winnow adequate delivery instructions at or in advance of the time stated for delivery, Winnow may charge the Customer for the cost of carriage of the refused delivery both to and from the premises of the Customer in addition to Winnow’s administration charges involved.
6.3. Winnow may deliver the Products by instalments, which may be invoiced separately. Any delay in the delivery of any of the Products shall not entitle the Customer to cancel any other instalment.
6.4. The Customer must check that the quantity and specifications of Products delivered correspond with the Contract before acceptance of the delivery note, and it is the Customer’s responsibility to bring any discrepancies to Winnow’s attention promptly.
6.5. Claims in respect of deliveries not corresponding to the Contract or damage to Goods reasonably visible on inspection must be made to Winnow by the Customer within seven days of the time of the delivery which gives rise to the claim. The Customer must retain (packaged for collection) any Goods which it considers to be damaged for inspection by Winnow or its authorised agents. Credit or replacements will only be granted by Winnow if the provisions of this Condition are complied with.
7.1. Winnow warrants to the Customer that so far as it is aware:
7.1.1. the Products do not infringe the Intellectual Property Rights of any third party; and
7.1.2. it is not in breach of any agreement with any third party by entering into the Contract and it is free to unconditionally do so.
7.2. If the Customer becomes aware that Winnow is in breach of Condition 7.1 or any claim is made or threatened by any third party against the Customer in connection with Condition 7.1 (a “Third Party Claim”), the Customer shall:
7.2.1. notify Winnow as soon as reasonably possible after becoming aware of such breach or Third Party Claim;
7.2.2. keep Winnow fully informed of the progress of, and all material developments in relation to, the Third Party Claim, and provide Winnow with copies of all information and correspondence relating to such claim;
7.2.3. take (and procure that all members of its Group shall take) such action as Winnow may reasonably request in writing to avoid, dispute, resist, mitigate, compromise or defend the Third Party Claim and to appeal against any judgment given in respect of it;
7.2.4. not (and procure that no other member of its Group shall) agree any compromise or settlement, or make any admission of liability or payment in relation to a Third Party Claim without the prior written consent of Winnow (such consent not to be unreasonably withheld or delayed).
7.3. Provided that the Customer has been using the Products as intended and agreed, and that Condition 7.2 is complied with, Winnow shall indemnify the Customer in respect of all costs, charges and expenses that are reasonably and properly incurred by it as a consequence of any actions taken by or at the request of Winnow.
7.4. If Winnow becomes aware that any part of the Products may infringe the Intellectual Property Rights of any third party, it may take reasonable steps to cease any infringement or potential infringement without liability to the Customer, including, without limitation, cancelling any portion of a Contract, withdrawing the infringing Products, and refunding or providing credit to the Customer for any amounts paid for any associated Products not yet delivered, and or altering the Products to eliminate the infringement or potential infringement.
7.5. The Customer shall ensure that its use of the Products is in compliance with all applicable local statutory provisions, in addition to complying with the usage instructions contained in the packaging or labelling of the Products. The Customer’s failure to comply may preclude it from bringing a claim against Winnow or pursuing its rights under these Terms and Conditions.
7.6. The Goods shall not be moved from the relevant Site without the express written consent of Winnow, such consent not to be unreasonably withheld.
8.1. Where an Installation is part of the Services to be provided under the Contract, the Customer shall ensure that the Site is clear and ready for the Installation. Neither Winnow nor its agents are authorised to drill into any surfaces, alter any wiring, or remove any fixtures at a Site as part of an Installation. The Customer or such other authorised personnel must conduct these steps prior to any Installation in a timely way so as not to unreasonably delay Winnow or its agents.
8.2. Should the Site not be prepared in accordance with Condition 8.1, or should the Customer fail to provide Winnow or its agents with the necessary access to and support at the Site and such failure prevents Winnow or its agents from completing the Installation as agreed, Winnow reserves the right to charge the Customer (by reference to any applicable day rates) for any reasonable costs incurred as a result of it being so prevented and any delay or subsequent Installation.
9.1. With effect from the date(s) specified in the Contract, Winnow shall, in consideration of the fees being paid in accordance with the Contract, provide the Services to the Customer. Any Subscription Service(s) shall commence on the first day of the month following delivery of the associated system hardware, or where Winnow provides on-site installation, on the day of installation, and continue for the relevant Minimum Period(s) and until cancelled thereafter.
9.2. Winnow shall use all reasonable endeavours to complete its obligations under the Contract and shall use reasonable care and skill to perform the Services. Any failure by Winnow to meet any of the specifications with respect to the Services shall not in itself constitute a breach of the Contract by Winnow, provided that Winnow has used its reasonable care and skill to meet such specifications.
9.3. Where agreed and set out in the Contract, Winnow shall provide training and a follow-up consultation to a reasonable number of Users to enable such Users to use and support the Products.
9.4. Winnow shall, upon request from the Customer, provide reasonable remote assistance from time to time with the day to day operation of the Products at any Site.
9.5. It is the Customer’s responsibility to establish and maintain always-on wired and/or Wi-Fi connectivity with internet access and sufficient bandwidth to enable the Services to be performed.
9.6. A number of the Services may be reliant on data being sent by the Customer to Winnow. Where such data is not available, for example due to interruptions to connectivity for data transmission, these Services may not be provided, or may be delayed until the required data becomes available to Winnow. Winnow shall not be liable for the failure of the Customer, or any of its third-party providers, to maintain connectivity or to submit such data.
9.7. Where the provision of Services requires Winnow personnel or other resources to be reserved in advance, the Customer shall provide Winnow with at least 14 days’ notice if it wishes to cancel or postpone such Services.
9.8.1. the Customer provides less than 14 days’ notice of cancellation or postponement to Winnow, the Customer shall pay 50 per cent. of the costs associated with the relevant Services plus any non-refundable travel and expenses incurred; or
9.8.2. the Customer provides less than 48 hours’ notice of cancellation or postponement to Winnow, the Customer shall pay 100 per cent. of the costs associated with the relevant Services plus any non-refundable travel and expenses incurred.
9.9. The Parties agree that where such Services are provided at no additional cost or no specific cost as part of an agreed package under the Contract, Condition 9.8 will still apply and the costs associated with the relevant Services will be calculated by reference to the applicable day rates and standard service costs involved.
10.1. Each Contract will commence on the date thereof and will continue in full force and effect until each Minimum Period thereunder is complete unless it is terminated by either Party in accordance with the terms of the Contract. Thereafter, each Contract shall continue in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract or by either Party serving three months’ written notice on the other Party.
10.2. Each Contract shall constitute an individual order distinct and separate from these Terms and Conditions and from each other but any such Contract shall be governed by and subject to these Terms and Conditions. Subject to Conditions 9.1 and 10.1, the Parties agree that:
10.2.1. each Contract may be terminated separately without affecting the existence of, or rights under, any other Contract; and
10.2.2. a Subscription Service may be terminated separately without affecting the continuation or existence of, or rights under, any other Subscription Services or the relevant Contract.
10.3. Notwithstanding Condition 10.1, Winnow may terminate a Contract (including the relevant Services) with immediate effect:
10.3.1. in accordance with Condition 5.6 (Customer non-payment) or Condition 11 (Customer Insolvency); or
10.3.2. in the event of any material breach by the Customer occurring which has not been remedied within 30 days of Winnow notifying the Customer in writing of such breach.
10.4. Notwithstanding Condition 10.1, the Customer may terminate any Contract by notice in writing to Winnow if Winnow has committed a material breach which has not been remedied within 30 days of the Customer notifying Winnow in writing of such breach.
10.5. If notice is given by either Party to terminate a Contract, all amounts owing to Winnow for Goods delivered and/or Services performed prior to the date of termination of the Contract shall immediately become due and payable to Winnow.
10.6. Save as agreed in the Contract, the Customer may not terminate a Subscription Service during its Minimum Period. Subscription Service fees for any Minimum Period remain payable regardless of usage.
10.7. Bespoke Goods cannot be returned, unless the relevant manufacturer agrees to accept them. Where this is not the case, upon termination of a Contract including Bespoke Goods, any amounts owing to Winnow in respect of such Bespoke Goods shall become due and payable in accordance with Condition 10.5.
10.8. Subject to Condition 10.7, where any terminated Contract includes any leased Goods or equipment, such Goods or equipment must be returned by the Customer to Winnow’s headquarters in London within 14 days of the relevant termination date with the costs of packing and shipping to be borne by the Customer. Subscription costs and services will continue and no cancellation of subscription Services including lease costs can become effective until such time as the relevant Goods or equipment are returned to Winnow in good working order or paid for in full, excluding the 14 day shipping grace period.
10.9. In the event of the termination of a Contract howsoever arising, Winnow may, without notice to the Customer, set off any liability of the Customer to it against any liability it has to the Customer, whether either liability is present or future, liquidated or unliquidated and whether or not either liability arises under the Contract. Any exercise by Winnow of these rights shall not limit or affect any other rights or remedies available to it under a Contract or otherwise.
10.10. Conditions 1 (Definitions), 2 (Applicability of Terms and Conditions), 5 (Payment Terms and Pricing), 12 (Warranty), 13 (Limitation of Winnow’s Liability), 14 (Intellectual Property), 16 (Use of Data), 17 (Force Majeure), 18 (Confidentiality), 19 (Anti-Corruption and Modern Slavery) and 20 (Additional Terms) shall continue to have effect in respect of a Contract notwithstanding the termination of such Contract. Termination of the Contract shall not affect the accrued rights of the Parties at the date of such termination; the remedies of the Parties shall be cumulative and not exclusive.
11.1. In the event that:
11.1.1. the Customer makes any voluntary arrangement with its creditors, proposes to enter into a company voluntary arrangement, enters into administration, is unable to pay its debts as they fall due, makes application to a Court to suspend enforcement action against it, goes into liquidation (in the event that the Customer is a company) or becomes insolvent, enters into a trust deed or voluntary arrangement for the benefit of its creditors (in the event that the Customer is an individual or firm), or if the equivalent occurs under any jurisdiction; or
11.1.2. an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, any of the property or assets of the Customer; or
11.1.3. the Customer suspends any payments hereunder without cause or ceases, or threatens to cease, to carry on business; or
11.1.4. Winnow reasonably considers that any of the events mentioned above are about to occur and notifies the Customer accordingly,
then Winnow shall be entitled to terminate the Contract(s) or suspend any further deliveries under the Contract(s) without any liability to the Customer and any amounts owing from the Customer to Winnow shall become immediately due and payable, including any Products delivered or provided but not yet paid for notwithstanding any previous agreement to the contrary.
12.1. Winnow warrants that all Products, including leased equipment (with the exception of Bespoke Goods, where Winnow relies upon a third-party supplier in this respect) shall comply with all relevant legislation from time to time in force and be fit for the intended purpose.
12.2. To the extent that it is able to and at the sole cost and expense of the Customer, Winnow shall assign or make available to the Customer the benefit of any warranties or guarantees relating to the Goods obtained by Winnow from the manufacturer.
12.3. In the event of the malfunctioning of any of the Products:
12.3.1. the Customer will conduct the initial troubleshooting routines as detailed in any instructions, training or guidance provided to the Customer or its Users, unless the Customer deems that to do so would be unsafe to personnel or property;
12.3.2. if the initial troubleshooting routines fail to solve the issue or are deemed unsafe, the Customer will contact Winnow (or such other level 1 support point as is specified in the Contract) for remote troubleshooting support;
12.3.3. if the issue remains unsolved following remote troubleshooting support and the Contract provides for an ongoing warranty service, Winnow may in its sole discretion determine whether repair or replacement is appropriate, and, if so, Winnow will instruct the Customer to send the relevant parts for inspection. Within ten business days of receipt, Winnow will inspect, repair or replace any failed parts as necessary, and dispatch the repaired or replaced Goods to the Customer. The costs of packing and shipping will be borne by the dispatching Party in each instance, except if the replacement is required due to a defect appearing within the first 30 days following delivery, in which case Winnow will arrange collection of the packed item for return at its cost. If, in Winnow’s sole judgement, the failure was due to defect in materials or workmanship, or normal wear and tear, Winnow will return the repaired or replaced item at no cost to the Customer;
12.3.4. if the malfunctioning is due to the causes set out in Condition 12.6, or if the relevant Goods are not protected by Winnow’s warranty service at the time of the malfunctioning, any repair or replacement will be charged at the then-applicable rate for labour, parts, and materials.
12.3.5 In cases where Winnow elects to send a replacement Product prior to return of the original Product, Customer is obliged to return the original Product immediately. If the original Product is not received with four weeks of the replacement Product delivery date, Winnow will consider the original Product as lost and invoice the Customer for the replacement Product and shipment accordingly.
12.4. Winnow reserves the right to substitute a similar device during the course of the warranty provision for any Goods.
12.5. Winnow shall, at its sole discretion, determine whether to replace the whole or any part of any Products found to be damaged or otherwise defective or to provide a refund or credit in respect of any amounts (or parts of amounts) paid or to be paid for the Products (or parts thereof) found to be defective.
12.6. Winnow shall be under no liability in respect of any defect arising from any wilful damage, negligence, subjection to abnormal conditions, failure to follow Winnow’s instructions (whether oral or in writing), misuse or alteration of the Goods without Winnow’s express written approval, or any other act or omission not agreed by Winnow on the part of the Customer, its Users, employees or agents or any third party.
12.7. Except as expressly provided in these Terms and Conditions and the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.8. Winnow provides no representation, warranty or undertaking that the Products will operate uninterrupted or error-free, and Winnow does not warrant or guarantee that it will be able to rectify all defects in the Products, nor that any such defect which does not materially affect the Customer's operations will be corrected.
13.1. References to liability in this Condition 13 include every kind of liability arising under or in connection with a Contract, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2. Winnow’s total aggregate liability under all Contracts with a Customer shall not exceed an amount equal to all amounts actually received by Winnow from the Customer in connection with such Contracts during the six month period immediately prior to the date the cause of action first arose.
13.3. To the extent permitted by law, Winnow shall have no liability for any losses incurred by the Customer or any other person:
13.3.1. as a consequence of any defect in any Product caused by abnormal conditions of storage, treatment or handling or any negligence or wrongful act on the part of the Customer or its Users, employees or agents;
13.3.2. for claims for damage reasonably apparent on inspection at the time of delivery or for delivery not corresponding to the Contract unless the provisions of Condition 6.5 (Acceptance and Claims Procedure) have been complied with;
13.3.3. for any loss of profit, loss of sales, loss of or damage to goodwill, loss of customers, loss of business opportunities, loss of anticipated savings or wasted expenditure (including management time), loss of use or corruption of software, data or information, and any indirect or consequential losses caused by Winnow’s negligence or any other wrongful act on Winnow’s part or that of its employees, agents or otherwise.
13.4. Nothing in these Terms and Conditions limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by the Company’s negligence, or fraud or fraudulent misrepresentation.
13.5. No member of Winnow’s Group shall have any liability to the Customer other than the entity named in the relevant Contract, and the Customer shall not bring a claim (whether in contract, tort or otherwise) or seek to enforce its rights against any other member of Winnow’s Group.
13.6. Unless the Customer notifies Winnow of its intention to make a claim in respect of an event within six months of the date on which the Customer became, or ought reasonably to have become, aware of the event having occurred, Winnow shall have no liability for that event.
14.1. All Intellectual Property Rights in the Products shall remain at all times the property of Winnow. The Customer shall not acquire any rights in the Products except as expressly provided for in these Terms and Conditions.
14.2. The Customer undertakes that it shall not, and the Customer shall procure that each member of its Group, and each of its affiliates and its and their respective officers, directors, employees, agents and related persons shall not:
14.2.1. grant any person access to any Product if such person is not a User or if access to such person is not explicitly permitted in the Contract;
14.2.2. reproduce, copy, duplicate, transmit, publish, display, distribute, (sub)license, or sell: (i) any Product, (ii) any software or material subject to Winnow’s Intellectual Property Rights, (iii) material from Winnow’s websites, or (iv) any software or material provided as part of the Services, without the explicit written consent of Winnow;
14.2.3. make adaptations or variations of, modify, repair or maintain any of the Products, or any other software or materials subject to Winnow’s Intellectual Property Rights; nor
14.2.4. replicate, duplicate, disassemble, decompile, reverse translate, reverse engineer or in any other manner decode any of the Products, software or other materials subject to Winnow’s Intellectual Property Rights.
14.3. For the duration of any software subscription period associated with the Services, Winnow shall be deemed to automatically grant a royalty-free, non-exclusive license (without the right to sublicense) to the Customer to use the Products in accordance with the terms of the Contract. Any unauthorised use or breach of this Condition 14 (Intellectual Property) by the Customer shall have the effect of immediately terminating such license and any other permissions granted.
Winnow shall maintain such insurance relevant to the provision of the Products as it deems appropriate. Winnow may provide the Customer upon request with details of such insurance policies.
16.1. In the course of providing the Services, Winnow collects data about the Customer and the Customer’s operations. This data is used to deliver and improve the Services provided by Winnow. Where this data is, or can be converted into, Anonymised Data, Winnow may use such Anonymised Data for other purposes including but not limited to benchmarking and credentials.
16.2. Winnow will not disclose any data about the Customer which is not Anonymised Data to any third party other than:
16.2.1. in accordance with the written consent of the Customer or as required by law;
16.2.2. to parties involved in the fulfilment of Winnow’s obligations under the Contract (including other members of Winnow’s Group) to the extent this is deemed necessary by Winnow acting reasonably, and Winnow shall procure that such third parties comply with the provisions of Condition 18 in respect of such data;
16.2.3. to those parties reasonably understood by Winnow to have an expectation to access the data, including but not limited to other members of the Customer’s Group (including its franchisors), operating or management partners, agents, and contractors.
Winnow reserves the right to defer the date of delivery of Products ordered by the Customer or to cancel the Contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions, epidemic and/or related government or regulator-imposed restrictions, loss of power or telecommunications systems.
18.1. Save as permitted by Condition 16 (Use of Data) or as set out in Condition 18.2 below, neither Party (the “Receiving Party”) shall disclose any confidential information concerning the business, affairs, customers, suppliers, pricing or other financial information of the other Party (the “Disclosing Party”) to any third party whatsoever, except as specified within the Contract.
18.2. The Receiving Party may disclose the Disclosing Party’s confidential information to:
18.2.1. other members of its Group, resellers, distributors and contractors, employees, officers, representatives or advisers who need to know such information for the purposes of carrying out their obligations under the Contract, provided that such parties to whom the Receiving Party discloses such information comply in full with this Condition 18 (Confidentiality);
18.2.2. those parties reasonably understood by the Receiving Party to have an expectation to access the information, including but not limited to other members of the Disclosing Party’s Group (including its franchisors), operating or management partners, agents, and contractors;
18.2.3. as may be required by law, court order or any government or regulatory authority, provided that the Receiving Party gives as much advance notice of such disclosure to the Disclosing Party as is reasonably possible;
18.2.4. in the case of Winnow, it may also disclose the Disclosing Party’s confidential information to its investors or potential investors.
Each Party shall comply with the Bribery Act 2010 and Modern Slavery Act 2015, and any related applicable laws, statutes and regulations.
20.1. The signature on behalf of a Customer which is not a natural person by any person purporting to sign with the Customer’s authority shall bind the Customer and the Customer shall be liable to comply with the terms of the relevant Contract.
20.2. If any provision of the Contract is found by any Court, tribunal or other administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed deleted and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
20.3. Either Party may assign any of its rights and obligations under the Contract(s) to another member of its Group, successor entity, or third party, unless such assignment would reasonably be considered to have a material adverse impact on the other Party. In such case, consent of the non-assigning Party shall be required in order to affect such assignment, such consent not to be unreasonably withheld or delayed. In addition, Winnow may subcontract certain activities or functions to third parties (including to other members of its Group), provided that such third parties adhere to any relevant standards and/or obligations under the Contract.
20.4. Any written communication given pursuant to the Contract must be sent by pre-paid first class post to the registered office of the recipient or by electronic mail to any address of the other Party set out in any document which forms part of the Contract or such other address as may be notified in writing from time to time.
20.5. Communications shall be deemed to have been received by the recipient two days after the date of posting if sent by post or at the time of transmission if by electronic mail.
20.6. Communications addressed to Winnow shall be marked for the attention of the relevant account manager. Communications addressed to the Customer shall be marked for the attention of the financial controller of the Customer, unless otherwise notified.
20.7. Any typographical, clerical, or other accidental errors of omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by Winnow shall be subject to correction without any liability on the part of Winnow.
20.8. The Parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
20.9. The Contract shall be governed by the laws of England and Wales and each Party irrevocably agrees, for the sole benefit of Winnow, that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract. Nothing in this Condition 20.9 (Governing Law and Jurisdiction) shall limit the right of Winnow to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.