1.1 In the Services Agreement:

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity.

“Applicable Law” means all applicable laws and regulations, as amended and in force from time to time.

“Break Fee” means 25% of the annual Software Services Fee.

“Building” means the building identified in the Order Form.

“Building Completion” means the date upon which District notifies Customer that the Services are live for Building users.

“Building Fee” means the fee set out in the Order Form.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Charges” means the non-refundable charges set out in the Order Form (the Building Fee, the Software Services Fee and any other charges set out in the Order Form).

“Control” means in respect of a company, the power of a person to directly or indirectly secure (a) by means of the holding of shares or the possession of voting power in or in relation to that company or any other body corporate; or (b) by virtue of any powers conferred by the articles of association or other document regulating that company or any other body corporate, that the affairs of the company are conducted in accordance with the wishes or directions of that other person.

“Customer” means the customer identified in the Order Form.

“District” means District Technologies Limited (company no 10648921) whose registered office is at 71 Central Street, London EC1V 8AB, United Kingdom.

“District Platform” means the proprietary software as a service platform which allows users to manage their spaces, automate workspace operations, access services and browse content, as made available by District from time to time in accordance with its roadmap.

“Initial Term” means the period set out in the Order Form.

“Intellectual Property Rights” means all vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trade marks and get-up (and goodwill attaching to those trade marks and that get up), domain names, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, rights in computer software, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.

“Losses” means claims, demands, actions, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all interest, fines, penalties, management time and legal and other professional costs and expenses).

“Malpractice” means giving or receiving any financial or other advantage that may be construed as a bribe, whether for the purpose of the Bribery Act 2010 or any other Applicable Law.

“Order Form” means an order form between District and Customer to which these Terms and Conditions apply.

“Renewal Term” means the period set out in the Order Form.

“Service Levels” means the service levels set out in the Order Form.

“Service Personnel” means staff who are employees or contractors of District and who are engaged in the provision of the Services.

“Services” means the services set out in the Order Form.

“Services Agreement” means together the Order Form and the Terms and Conditions, as varied, novated, supplemented, amended, or replaced from time to time in accordance with its terms.

“Software Services Fee” means the fee set out in the Order Form.

“Sqft” means the square footage of the Building set out in the Order Form.

“Start Date” means the date the Services Agreement begins, being the date the Order Form is signed by both parties.

“Term” means together the Initial Term and all Renewal Terms.

“Terms and Conditions” means the then current terms and conditions of District.

1.2 The terms “holding company”, “subsidiary”, “parent undertaking”, “subsidiary undertaking” and “wholly-owned subsidiary” shall be interpreted in accordance with the Companies Act 2006, and the term “associated company” shall be interpreted in accordance with section 449 of the Corporation Tax Act 2010.

1.3 In the Services Agreement the interpretation of general words shall not be restricted by words indicating a particular class or particular examples.

1.4 In the Services Agreement, unless otherwise stated, time shall not be of the essence for the performance of any obligation.

 

2 Commencement, DURATION, and renewal

2.1 The Services Agreement shall not enter into force, be legally binding or have any other effect unless it has been signed by the authorised representatives of both parties to it.

2.2 The Services Agreement begins on the Start Date and shall continue for the Initial Term, unless terminated earlier in accordance with its terms.

2.3 Provided the Services Agreement has not been terminated earlier in accordance with its terms, then immediately prior to the end of the Initial Term, the term shall automatically renew for the Renewal Term, calculated from the date of Building Completion.

2.4 Immediately prior to the end of a renewal under clause 2.3 or any subsequent renewal under this clause, the term of the Services Agreement shall automatically renew for a further Renewal Term.

 

3 Services

3.1 District shall provide the Services in accordance with the Services Agreement.  District shall not be obliged to provide any element of the Services prior to payment of the applicable Charges.

3.2 In performing its obligations under the Services Agreement, District shall: (a) apply such time, attention and skill as may be reasonable, taking into account the resources available to District, for the due and proper performance of the Services with reasonable care and skill to be expected of a software as a service provider; (b) ensure that, when providing the Services, it does not interfere with the activities of Customer, its employees, agents, suppliers or Building users except as reasonably necessary to carry out the Services; and (c) comply with all Applicable Law and reasonable Building policies and procedures from time to time insofar as they are relevant to the Services and have been provided by Customer, including all relevant security and code of conduct policies.

 

4 Dependencies and obligations

4.1 Customer shall give District all reasonable and necessary access to the Building and its facilities, services, technology, communications and other relevant infrastructure, to enable District to provide the Services.

4.2 Customer acknowledges and agrees that District cannot provide the Services in accordance with the Services Agreement without co-operation from Customer and Building users.  Customer agrees to apply such time, attention and resource as may be reasonable, taking into account the nature of the Services and its direct relationship with Building users, to enable District to deliver the Services without undue interference or delay.

4.3 District shall keep Customer informed of any interference or delay to its ability to deliver the Services.

4.4 Customer acknowledges and agrees that District and/or its licensors own all Intellectual Property Rights in the District Platform and the Services.  Customer’s use of any such Intellectual Property Rights is limited to that required to receive and use the Services as envisaged by the Services Agreement.

4.5 Unless permitted and necessary under Applicable Law, Customer may not copy, modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of any software or content made available by District or any component of such software or content.  Customer may not use any work around to seek to circumvent any technical limitations.

4.6 Customer is not licensed to, and agrees that it will not, combine any non-open source component of such software with any software licensed under the GNU General Public Licence, the GNU Lesser General Public Licence, or any other open source licence terms such that it that could require the release in source code form of non-open source components of such software.  

 

5 Service Levels

5.1 Customer acknowledges that the Services are an aggregation of many available third party services and that such third party aggregated services are provided to District and aggregated for Customer on an “as is” and “as available” basis.

5.2 District shall provide Customer with a monthly report showing whether it is meeting the Service Levels.

5.3 Except as expressly set out in the Services Agreement, neither District nor any of its suppliers, distributors or investors make any specific promises about the Services.

5.4 Except as expressly set out in the Services Agreement, District does not warrant that any of the Services will be secure, accurate, uninterrupted or error free or that they will meet Customer’s or Building users’ specific requirements.

5.5 Customer acknowledges that all third-party data, goods and services which it or Building users may access through use of the Services are the sole responsibility of the person from which they originated.

5.6 Customer acknowledges that use of third party data, goods and services may be subject to separate terms between Customer and the relevant third party.  In that case, the Services Agreement does not affect Customer’s legal relationship with these third parties.

5.7 District shall use reasonable endeavours to remedy any failure to meet the Service Levels as soon as reasonably possible by ensuring that the performance of the Services (or the relevant part of the Services) is improved to meet the requirements set out in the Services Agreement, and by taking all reasonable steps to ensure that such service failure does not recur.  Where the failure to meet the Service Levels has been caused or contributed to by Customer or any Building users, Customer shall be responsible for any increased costs associated with bringing the Services back up to the stated Service Levels.

 

6 Roadmap and collaboration

6.1 District provides services to its clients via the District Platform on a “software as a service” basis.

6.2 District may from time to time share its roadmap for its services, including plans to add/remove features, its functionality priorities and other information.  District welcomes feedback from Customer on its roadmap.

6.3 Customer shall meet with District as reasonably requested by District to provide feedback on the Services for the purpose of planning the future roadmap.

6.4 If Customer provides any technical or other information to District, District has an unrestricted right to use such information for its business purposes, including for support and product/service development.

 

7 Charges and payment

7.1 Customer shall pay District the Charges.

7.2 The Charges do not include value added tax or any locally applicable equivalent sales tax, which Customer shall pay, in addition to the Charges, without set-off or withholding (and if withholding is required by Applicable Law, Customer shall gross up its payment accordingly).

7.3 District shall invoice Customer the Charges as follows: (a) Building Fee: upon signature of the Services Agreement; and (b) Software Services Fee: the first invoice upon signature of the Services Agreement, then annually at least 30 days in advance of the relevant year; and (c) any other charges as set out in the Order Form or otherwise agreed in writing between District and Customer.7.4 Unless the subject of a genuine dispute, Customer shall pay all invoices within 30 days of the date of the invoice.

7.5 If a party fails to pay in full on the due date any sum payable by it under or in connection with the Services Agreement, interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 4% per annum above the base rate of Barclays Bank PLC from time to time.

7.6 If Customer does not pay on time District may suspend use of the Services to Building users until payment is made.

7.7 District may increase the Software Services Fee on an annual basis with effect from each anniversary of Building Completion in line with the percentage increase in the Consumer Prices Index in the preceding 12 month period.  The first such increase shall take not take effect until the end of the first Renewal Term.

 

8 Warranties

8.1 Each party represents and warrants that it has the power and authority to enter into and perform its obligations under the Services Agreement, which constitutes valid and binding obligations on it in accordance with its terms.

8.2 District represents and warrants that: (a) the provision of the Services by District to Customer shall not infringe the Intellectual Property Rights of a third party in the territory in which the Building is located; and (b) in performing its obligations under the Services Agreement it shall comply with all Applicable Law.

8.3 Customer represents and warrants that: (a) it has in place all necessary licences and permission to receive the Services; (b) in performing its obligations under the Services Agreement it shall comply with all Applicable Law (including relating to Intellectual Property Rights); and (c) it is not entering into the Services Agreement so as to gain access to confidential information or intellectual property with the intention of building a service the same as or similar to the District Platform.

 

9 Data Protection

Each party shall comply fully with all Applicable Law relating to data protection with regard to the collection, processing and use of any personal information which either party may obtain by reason of the Services Agreement, including putting in place and maintaining throughout the term of the Services Agreement appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of personal data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to any equipment used to process personal data.

 

10 Confidentiality and announcements

10.1 “Confidential Information” means all information of a confidential nature in the disclosing party’s possession or control, whether created before or after the date of the Services Agreement, whatever its format, and whether or not marked “confidential”; and terms of the Services Agreement, but not including information which is or comes into the public domain through no fault of the other party, was already lawfully in the other party’s possession or comes into the other party’s possession without breach of any third party’s confidentiality obligation to the disclosing party, or is independently developed by or on behalf of the other party.

10.2 Each party shall safeguard the other party’s Confidential Information as it would its own confidential information, and shall use, copy and disclose that Confidential Information only in connection with the proper performance of the Services Agreement.

10.3 Nothing in the Services Agreement shall be construed so as to prevent one party from disclosing the other’s Confidential Information where required to do so by a court or other competent authority, provided that, unless prevented by Applicable Law, the first party promptly notifies the other party in advance and discloses only that part of the other party’s Confidential Information that it is compelled to disclose.

10.4 District may publicly use Customer’s name and logo, and Building name and logo, to refer to Customer as a customer of District.  District will follow any applicable brand usage guidelines provided by Customer.

 

11 Limitations on liability

11.1 Subject to clauses 11.2 and 11.3, the total liability of each party to the other in connection with the Services Agreement, whether arising from contract, negligence or otherwise, shall be limited to a sum equal to 50% of the annual Software Services Fee.

11.2 Subject to clause ‎11.3, neither party shall be liable for any indirect or consequential loss.

11.3 The exclusions and limitation of liability set out in clause 11 do not apply to: (a) liability arising from death or injury to persons caused by negligence; (b) Customer’s obligation to pay the Charges; (c) liability arising as a result of fraud; (d) breach of terms regarding title implied by section 2 Supply of Goods and Services Act 1982; and (e) anything else which cannot be excluded or limited by Applicable Law, to which no limit applies.

 

12 Insurance

District shall maintain in force at its own expense all insurances required by Applicable Law with a reputable insurer.

 

13 Termination

13.1 Either party may terminate the Services Agreement with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of the Services Agreement which is not capable of remedy (or is capable of remedy, but which the other party fails to remedy within 30 days of receiving notice specifying the breach and requiring the breach to be remedied); or (b) the other party repeatedly breaches any of the terms of the Services Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Services Agreement.

13.2 Customer may terminate this Agreement with immediate effect by giving written notice to District if District or any of the Service Personnel is found to have been directly responsible for any fraud or Malpractice relating to the Services.

13.3 District may terminate the Services Agreement if Customer commits a breach of clause 7 and Customer does not remedy the relevant breach within 14 days of receipt of written notice of the breach being given by District.

13.4 Either party may terminate the Services Agreement with immediate effect by giving the other party notice if: (a) such other party becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended); (b) such other party ceases or threatens to cease to carry on the whole or a substantial part of its business; (c) any distress or execution shall be levied upon such other party’s property or assets; (d) such other party shall make or offer to make any voluntary arrangement or composition with its creditors; (e) any resolution to wind up such other party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up such other party shall be presented and not withdrawn or dismissed within seven days or an order is made for the winding up of such other party; (f) such other party is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it; (g) a receiver or administrative receiver is appointed over all or any of such other party’s undertaking property or assets; (h) any bankruptcy petition is presented or a bankruptcy order is made against such other party; (i) an application is made for a debt relief order, or a debt relief order is made in relation to such other party; (j) such other party is dissolved or otherwise ceases to exist; or (k) the equivalent of any of the events described in (a) to (j) occurs in relation to such other party under the laws of any jurisdiction.

13.5 After the Initial Term, Customer may terminate the Services Agreement on 90 days’ notice in return for payment of the Break Fee (to be paid within 30 days of the notice of termination, failing which notice shall not be effective).

13.6 After the Initial Term, District may terminate the Services Agreement by giving at least 12 months’ notice, such notice to expire on an anniversary of Building Completion.

13.7 If Customer intends to transfer the Services Agreement as an asset transfer relating to transfer of ownership or management of the Building, it shall notify District promptly.  If District does not wish to continue to provide the Services to the transferee and the transferee is not an Affiliate of Customer, District may terminate the Services Agreement by giving 60 days’ notice to Customer (prior to transfer) or the transferee (after transfer).

13.8 For the purposes of clause 13, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance.

13.9 Termination or expiry of the Services Agreement (howsoever occurring) shall not affect either of the parties’ accrued rights or liabilities, or the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.

 

14 Termination assistance

Immediately after receipt (or service) of notice to terminate the Services Agreement under clause 13, each party shall provide all reasonable assistance and information to the other to ensure an orderly end to the relationship.

 

15 Force majeure

Neither party shall be liable for any breach of the Services Agreement directly or indirectly caused by circumstances beyond the reasonable control of that party and which prevent that party from performing its obligations to the other, provided that a lack of funds shall not be regarded as a circumstance beyond that party’s reasonable control.

 

16 Fraud, bribery and corruption

16.1 Without prejudice to any other remedy it may have, if Customer has reasonable grounds for believing that any of the Service Personnel has committed a fraud or Malpractice relating to the Services, Customer may, in its absolute discretion: (a) suspend the Services; and/or (b) withhold payment of any Charges falling due to District.

16.2 Customer shall permit District to resume delivery of the Services if it is established or reasonably thought to be the case that Service Personnel were not responsible for any fraud or Malpractice.

16.3 If it is subsequently found that none of Service Personnel were responsible for any fraud or Malpractice, Customer shall pay District any Losses which District has suffered.

 

17 General

17.1 District shall not, without the written consent of Customer (which shall not be unreasonably withheld or delayed) assign, transfer, grant any security interest over or hold on trust any of its rights or obligations under the Services Agreement or any interest in them.  Nothing in this clause 17.1 shall prevent District from entering into any agreement or arrangement in relation to any fundraising or public offering.

17.2 Customer shall not, without the written consent of District (which shall not be unreasonably withheld or delayed) assign or transfer any of its rights or obligations under the Services Agreement to any third party who is not an Affiliate of Customer.

17.3 Nothing in the Services Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties.  No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.

17.4 The parties do not intend any third party to have the right to enforce any provision of the Services Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

17.5 The Services Agreement is the entire agreement between the parties, and replaces all previous agreements and understandings between them, relating to its subject matter.

17.6 No variation of the Services Agreement shall be effective unless it is in writing and signed by or on behalf of each party.

17.7 The rights and remedies expressly conferred by the Services Agreement are cumulative and additional to any other rights or remedies a party may have.

17.8 Notices under clause 13 shall be in writing and delivered by hand or sent by recorded delivery post to the relevant party at its address as set out in the Services Agreement.  Without evidence of earlier receipt, notices are deemed received: (a) if delivered by hand, at the time of delivery; (b) if sent by recorded delivery, at 9.00 am on the second Business Day after posting; and (c) in the case of post it shall be sufficient to prove that the notice was properly addressed and posted or transmitted.  Any other notices and communications under the Services Agreement may be delivered in writing and/or electronically.

17.9 The Services Agreement and any non-contractual obligations arising in connection with it are governed by and construed in accordance with English law, and the English courts have exclusive jurisdiction to determine any dispute arising in connection with the Services Agreement, including disputes relating to any non-contractual obligations.