Terms of Service
FREE SOFTWARE SUBSCRIPTION AGREEMENT
Thank you for Your interest in using Our software. These software subscription details (“Agreement Details“), any documents incorporated by reference, and Our standard terms and conditions (“Conditions“) (together the “Agreement“) set out the basis on which We would be pleased to provide Our software subscription services to You free of charge.
1. YOU AND US
HULER LIMITED (“We“) (and words such as “Us” will be interpreted accordingly) will provide to You, the Subscription Services described in these Agreement Details. You, being the person using our Subscription Services, will be Our customer (“You“) (and words such as “Your” will be interpreted accordingly).
2. AGREEMENT BETWEEN YOU AND US
|Effective Date:||The Agreement between You and Us and Your Subscriptions will start from today|
We will provide the Subscription Services set out in these Agreement Details subject to the Conditions. You confirm receipt of the Conditions, which will be deemed to form part of the Agreement. You should read the Conditions before signing the Agreement in conjunction with these Agreement Details and, in the event of any inconsistency or conflict between the two (2), the Agreement Details document will prevail.
The initial version of the Conditions are attached to these Agreement Details and/or available at www.myclevergroup.com. We reserve the right to amend the Conditions from time to time. In the event that amendments are made, revised Conditions will be posted on www.myclevergroup.com.
3. YOUR SUBSCRIPTION LIMIT
By entering into this Agreement, You and Us agree that if the number of current Subscriptions exceeds the Subscription Limit (as defined below), We will have the right to terminate this Agreement, and You and Us will enter into a new agreement under which We will provide the Subscription Services and You will take and pay for the same.
4. YOUR FREE SUBSCRIPTION SERVICES
This section sets out the Software, Our understanding of Your Subscriptions and the Subscription Services that We will be providing to You.
|Subscriptions:||You have a maximum of ten (10) subscriptions for use by Your Authorised Users (as described below) (“Subscription Limit“).
The number of Authorised Users You permit to access and/or use Your Subscriptions or the Subscription Services must not exceed the Subscription Limit.
|Subscription Services:||You will use the Subscriptions to access the Software and We will make the Software available to You (at the URL which We will notify to You) for access by You via the internet.
You are responsible for ensuring You have the wherewithal to access that URL over the internet and compatible hardware and devices to, access, interoperate with and receive, the benefit of the Subscription Services.
|Authorised Users:||Those employees, agents and independent contractors of You who are authorised by You to use the Subscriptions. The right to access and use the Services is granted to You only and will not be considered granted or capable of grant to any other members of Your Group or any of their employees, agents or independent contractors.|
|Subscription Charges||We will provide the Subscription Services to You free of charge provided that the number of Subscriptions does not exceed the Subscription Limit.
Where You require Us to provide additional services outside of the Subscription Services such as support services, installation services or any other service that is not a Subscription Service, You and Us will agree the additional services and any related charges prior to commencement.
5. HOW LONG IS THE AGREEMENT IS FOR
The Agreement will commence on the Effective Date and will continue unless and until terminated in accordance with paragraph 3 of these Agreement Details or Condition 12 of the Conditions (“Subscription Term“).
6. OUR RIGHT TO CONTACT YOU
We will contact You by email from time to time to inform You about new features and updates for the Subscription Services and to support Your use of the Subscription Services. If You do not want Us to contact You by email to keep You informed of these updates and to provide this support then please contact Us.
7. OUR DATA PROCESSING
The following table describes the Personal Data Processing activities performed by Us on Your behalf.
|Subject matter of processing||Processing of Personal Data and the Services provided under the Agreement.|
|Duration of processing||For the duration of the Agreement, and as further instructed by You.|
|Nature of processing||Hosting, recording, and consulting Personal Data.|
|Purpose of processing||Provision of software, support and hosting of Personal Data for a software solution.|
|Type of personal data||Services: names, contact details, employee numbers, details of work.|
|Categories of data subjects||Services: Your employees, workers, contractors and end customers.|
8. WHAT YOU AND US ARE RESPONSIBLE FOR
We would like to draw Your attention to Condition 11 of the Conditions which contains important restrictions on liability.
9. HOW TO GET FURTHER INFORMATION ABOUT US
Further information concerning Huler Limited may be obtained from www.myclevergroup.com.
Once again, We thank You for choosing Us to provide You with Our Subscription Services. We very much look forward to working with You. If You have any queries or concerns, please do not hesitate to contact Us.
|IMPORTANT INFORMATION ABOUT SIGNING THE AGREEMENT|
|You confirm that You are entering into the Agreement for a business (i.e. in connection with Your trade, business, craft or profession) and not as a consumer. If entering into the Agreement for an entity, such as the company You work for, You represent that You have legal authority to bind that entity.
The Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one (1) Agreement. Transmission of the executed signature page of a counterpart of the Agreement by email (in PDF, JPEG or other agreed format) will take effect as delivery of an executed counterpart of the Agreement. If either method of delivery is adopted, without prejudice to the validity of the Agreement made, You and Us will provide the other with the original of such counterpart as soon as reasonably possible thereafter. No counterpart will be effective until You and Us have executed at least one (1) counterpart.
You should read the Conditions before signing the Agreement. By submitting these Agreement Details, You confirm that You have read, understood and acknowledged the Conditions.
STANDARD SOFTWARE SUBSCRIPTION TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In the Agreement, the following words and phrases have the meaning given below (unless the context otherwise requires). Specific defined terms may also be set out in the Agreement Details:
|“Agreement”||means the agreement specified as such in the Agreement Details;|
|“Agreement Details”||means the software subscription details outlining Your order for the Services;|
|“Applicable Law”||means in each applicable jurisdiction, any applicable law, statute, byelaw, regulation, order, regulatory policy, guidance or industry code, rule of court or directive or requirement of any Regulatory Body, delegated or subordinate legislation or notice of any Regulatory Body from time to time;|
|“Authorised User”||means the persons identified as such in the Agreement Details;|
|“Authorised User List”||has the meaning given in Condition 2.8;|
|“Available”||means that the relevant Subscription Services are available such that functionality can be accessed by Authorised Users with no material loss of performance or functionality and reference to “Availability” and “Unavailable” will be constructed accordingly;|
|“Business Day”||means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|“Business Hours”||means 9.00 am to 5.00 pm (UK time), each Business Day;|
|“Conditions”||means these standard software subscription terms and conditions (as updated or replaced by Us from time to time) and reference to “Condition” will be construed accordingly;|
|“Confidential Information”||means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Condition 9;|
|“Content”||means any content, information, images, data and/or other materials which You (or a third party appointed by or acting on Your behalf, or invited by You to utilise the Services (other than one of Our Personnel)) provide from time to time and which is to be used or processed, in or in connection with the provision of the Services;|
|“Control”||means the ability to control or direct, directly or indirectly, the board, executive body, decision making process or management of an entity by virtue of ownership, right of appointment, right to control election or appointment, voting rights, the ability to control the exercise of voting rights, management agreement or any other agreement (and “Controlled” and “change of Control” will be construed accordingly);|
|“Data Controller, Data Processor, Data Subject, Process/Processing, Personal Data, Personal Data Breach and Special Categories of Personal Data”||will have the same meaning as given to them in the Data Protection Laws;|
|“Data Protection Laws”||means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;|
|“Effective Date”||means the date specified as such in the Agreement Details;|
|“Excluded Losses”||means loss of profits, loss of revenue, loss of use, loss of goodwill, loss of data, loss and/or liability arising as a result of third party claims, loss due to interruption of business and loss of anticipated savings;|
|“Force Majeure Event”||has the meaning given in Condition 14;|
|“Group”||means, in relation to any company, any other person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with such company;|
|“Insolvency Event”||means the occurrence of any of the following events in respect of the relevant entity (or any event analogous to any of the following in any jurisdiction):|
|(A) any steps are taken with a view to the obtaining of any moratorium for the entity;|
|(B) any steps are taken with a view to the appointment of an administrator, administrative receiver or liquidator of the entity or a receiver of all or any part of the entity’s property or such an administrator, administrative receiver, liquidator or receiver is appointed;|
|(C) any steps are taken with a view to the general re-scheduling or reconfigurement of all or any of the entity’s debts;|
|(D) any steps are taken with a view to any compromise, composition or arrangement by or in relation to the entity with its creditors or any of them, or its members or any of them, in relation to its debts, or for the purpose of eliminating, reducing, preventing or mitigating the effect of any financial difficulties of the entity (except for the purposes of a bona fide solvent amalgamation or reconstruction), or such compromise, composition or arrangement is approved, agreed or sanctioned;|
|(E) the entity being unable or admits its inability to pay its debts or being capable of being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or|
|(F) the entity suspends or threatens to suspend payment of its debts;|
|“Inspection”||has the meaning given in Condition 5.1;|
|“Intellectual Property Rights”||means:|
|(A) patents, utility models, supplementary protection certificates, petty patents, rights in trade secrets (such as inventions (whether patentable or not)), registered designs, rights in copyright (including authors’ and neighbouring or related “moral” rights), database rights, design rights, semiconductor topography rights, mask work rights, trade marks and service marks;|
|(B) all registrations or applications to register any of the items referred to in paragraph (a); and|
|(C) all rights in the nature of any of the items referred to in paragraphs (a) or (b) including continuations, continuations in part and divisional applications, reputation, personality or image, trade names, business names, brand names, getup, logos, domain names and URLs, rights in unfair competition and, without prejudice to anything set out elsewhere in this definition, rights to sue for passing off and all rights having equivalent or similar effect to, and the right to apply for any of, the rights referred to in this definition in any jurisdiction;|
|“Our Material”||means content or other material provided or made available to (or for) You by Us from time to time;|
|“Our Personnel”||means all employees, staff, officers, individual contractors, other workers, agents and consultants, of Us, Our Group and/or any subcontractor who are engaged in the provision of the Services under the Agreement from time to time;|
(A) any unavailability (including for maintenance carried out) during the window of 17.00 pm to 09.00 am (UK time);
|(B) unscheduled maintenance, provided that We have used reasonable endeavours to give You at least one (1) Business Hours’ notice in advance; and/or|
|(C) any unavailability to the extent that it is caused or contributed to by any act, omission, breach or default of anyone, other than Our Personnel who are not acting on the instructions of You or Your Authorised User;|
|“Prohibited Material”||means any material that:|
|(A) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;|
|(B) is bullying, insulting, intimidating or humiliating to any person;|
|(C) facilitates illegal activity, including copyright or trademark infringement;|
|(D) depicts sexually explicit images or terrorist content;|
|(E) promotes unlawful violence;|
|(F) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;|
|(G) is otherwise illegal or causes damage or injury to any person or property;|
|(H) is spam or links to third party sites that collect personal or sensitive data under false pretences; or|
|(I) breaches any legal duty owed to a third party, such as a contractual duty or a duty of confidence;|
|“Regulatory Bodies”||means in each applicable jurisdiction, those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Agreement or any other affairs of Ours and “Regulatory Body” will be construed accordingly;|
|“Services”||means the Subscription Services and any other service provided or to be provided by Us to You under the Agreement;|
|“Software”||means any online or other software applications provided by Us as part of the Subscription Services as set out in the Agreement Details;|
|“Subscriptions”||means the subscriptions available to You pursuant to the Agreement which entitle Authorised Users to access and use the Subscription Services and Software as specified in the Agreement Details;|
|“Subscription Limit”||means the maximum number of Subscriptions held by You under the Agreement, as specified in the Agreement Details;|
(a) use of the Services contrary to Our instructions and/ or the Agreement; or
(b) modification or alteration of the Services by any party other than Us or Our Personnel;
|“Subscription Services”||means the subscription services provided or to be provided by Us to You under the Agreement, as set out in the Agreement Details;|
|“Subscription Term”||means the term of the Subscriptions set out in the Agreement Details;|
|“Updates and Patches”||means any new update to the Software which adds or updates minor functionality or features, or otherwise corrects faults or fixes bugs in the Software, as determined by Us;|
|“Upgrades and Releases”||means any new release or upgrade to the Software which adds, updates or enhances functionality or features (excluding Updates and Patches), as determined by Us;|
|“Virus”||means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;|
|“Your Data”||means the data inputted or provided by You or an Authorised User (or any third party acting on Your or their behalf), or by Us on Your behalf for the purpose of using the Subscription Services or facilitating Your use of Subscription Services (this shall include any data inputted onto the website by a third party);|
|“Your Materials”||the content provided by You to Us as set out in the Agreement Details and/or otherwise in connection with the Agreement;|
|“Your Personnel”||means all employees, staff, officers, individual contractors, other workers, agents and consultants, of You; and|
|“Your System”||means the combination of hardware, software, computer and telecoms devices and equipment used by You for the receipt of the Subscription Services (as the context requires).|
1.2 In the Agreement (unless the context requires otherwise):
1.2.1 the words “including”, “include”, “for example”, “in particular” and words of similar effect will be construed so that they do not limit the general effect of the words which precede them, and so that any examples that are given are not to be exclusive or limiting examples of the matters in question;
1.2.2 references to the Agreement and any other document referred to in the Agreement, is a reference to it as validly varied, supplemented and/or novated from time to time;
1.2.3 references to the singular include the plural and vice versa;
1.2.4 recitals and headings are all for reference only and will be ignored in construing the Agreement;
1.2.5 general references to a “person” will be understood to include (as applicable), a natural person, a company, a partnership, and an unincorporated association (in each case whether or not having separate legal personality); and
1.2.6 reference to any legislative provision shall be deemed to include any statutory instrument, bylaw, regulation, rule, subordinate or delegated legislation or order and any rules and regulations which are made under it and any subsequent reenactment or amendment of the same, unless this imposes a substantial new liability upon Us, or significantly adversely affects any of Our rights.
2. YOUR SUBSCRIPTION SERVICES
2.1 We will, during the Subscription Term, provide the Subscription Services to You via Your Subscriptions on and subject to the terms of the Agreement.
2.2 We may amend the Subscription Services in Our sole and absolute discretion from time to time.
GRANT OF RIGHTS
2.3 Subject to the terms of the Agreement, We grant to You a non-exclusive and non-transferable right to permit Authorised Users to access and use the Subscription Services during the Subscription Term, solely for Your internal business operations.
2.4 We will use commercially reasonable endeavours to make the Subscription Services Available twenty-four (24) hours a day, seven (7) days a week, except for periods of Permitted Unavailability.
2.5 Subject to Condition 2.6, if the Subscription Services do not comply with Condition 2.4, Your sole and exclusive remedy will be for Us to use reasonable endeavours to correct any such non-compliance promptly.
2.6 We will not be responsible for any non-compliance of the Subscription Services with Condition 2.4 as a result of Subscription Misuse.
YOUR AUTHORISED USERS
2.7 You will not allow the Subscription Services to be accessed or used by any person other than an Authorised User and will procure that Authorised Users access and use the Subscription Services in accordance with the Agreement. You will be responsible for the acts and omissions of Your Authorised Users as if they were Your own.
2.8 You will at all times keep detailed records of the then current Authorised Users (“Authorised User List”) and will provide the Authorised User List to Us promptly upon Our request.
2.9 You will ensure that each Authorised User keeps the passwords for the Subscription and access to the Subscription Services secure and You will procure that the password for each Subscription is frequently changed and kept confidential.
CHANGING YOUR SUBSCRIPTIONS
2.10 If You require additional Subscriptions that do not exceed the Subscription Limit, You will notify Us in writing and We will evaluate Your request and respond to You with approval or rejection of the request (such approval not to be unreasonably withheld).
2.11 If you require additional Subscriptions that exceed the Subscription Limit, You will notify Us in writing and Our rights under paragraph 3 of the Agreement Details shall apply.
2.12 You are not entitled to cancel or reduce the number of Subscriptions You have at any time during the Subscription Term.
USE OF THE SUBSCRIPTION SERVICES
2.13 You will not (whether by You or a third party), except to the extent permitted under the Agreement or by any Applicable Law:
2.13.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Software in any form or media or by any means; or
2.13.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
2.14 You will not (whether by You or a third party):
2.14.1 access all or any part of the Subscription Services or the Software in order to build a product or service which competes with the Subscription Services and/or the Software;
2.14.2 use the Subscription Services to provide services to third parties;
2.14.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Subscription Services, or otherwise make the Subscription Services available to any third party except the Authorised Users, unless approved by Us in writing;
2.14.4 misuse the Subscription Services or the Software including by knowingly introducing Viruses, Prohibited Material or other material that is malicious or technologically harmful; or
2.14.5 attempt to obtain or assist any person (other than an Authorised User) in obtaining, access to the Subscription Services.
2.15 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, Your Subscriptions and the Subscription Services and, in the event of any unauthorised access or use, will promptly notify Us.
2.16 Where We provide links from the Software or the Subscription Services or the same otherwise contain links to other sites and resources provided by third parties, these links are provided for Your information only. We have no control over the availability or content of such other sites or resources, and accept no responsibility or liability for them or for any loss or damage that may arise from Your use of third party sites or materials.
UPGRADES AND RELEASES
2.17 We may from time to time provide Updates and Patches. We will usually implement Updates and Patches automatically but certain Updates and Patches may require implementation by You (in whole or in part). If Updates and Patches are not automatically implemented by Us, We will inform You and You will be responsible for implementing the Update or Patch within a reasonable time of being requested to do so.
2.18 Updates and Patches will be provided by Us without cost to You, unless Condition 2.19 applies.
2.19 If We inform You that You are required to implement an Update or Patch (in whole or in part) but You require Us to implement the Update or Patch for You, We will be entitled to levy charges and You will be required to pay Us for the implementation of such Update or Patch.
2.20 We do not provide Upgrades and Releases however We may from time to time contact You in relation to Upgrades and Releases, that are required to comply with Applicable Law.
3. LICENCES, PERMISSIONS AND CONTENT
3.1 We will obtain and maintain all necessary licences, consents, and permissions necessary for the performance of Our obligations under the Agreement.
3.2 You will obtain and maintain all necessary licences, consents, and permissions, and give all notices including to visitors, necessary for You to perform Your obligations under the Agreement and for You to receive the Services (including any notices and/or consents required to be given to or obtained from visitors in order to provide them access to the site and/or to obtain and/or process their data and/or information).
4. INTERNET AND INTERRUPTIONS
4.1 We do not warrant that Your use of the Services will be uninterrupted or errorfree or that the Services or the information obtained by You through them will meet Your requirements.
4.2 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.1 You will grant to Us, Our agents and representatives, and to any statutory or regulatory auditors of Ours, the right to remotely inspect Your use of the Services and the right of access to Your premises, Your System and Your Personnel as We may require during Business Hours on providing reasonable advance written notice and not more frequently than twice in any twelve (12) month period, in order to verify that You are complying with the terms of the Agreement; and/or fulfil any request by any Regulatory Body in the course of carrying out its regulatory functions (an “Inspection”).
5.2 We will use reasonable endeavours to ensure that Inspections are conducted in a manner so as to not substantially interfere with the normal conduct of Your business. We will bear Our own costs in relation to any Inspection.
5.3 If any Inspection by or on behalf of Us demonstrates any:
5.3.1 noncompliance by You with Your obligations pursuant to the Agreement, without prejudice to any of Our other rights and remedies, You will promptly remedy the cause of such noncompliance; and
5.3.2 fraud or material or persistent breaches by You (or anyone acting on Your behalf), We may require that You promptly refund to Us all reasonable costs and expenses relating to such Inspection (including the reasonable costs of third party advisers),
and We will be entitled at Our discretion to suspend provision of all or part of the Services until We are satisfied that such matter will not re-occur.
6. YOUR DATA
6.1 We acknowledge that Your Data is Your property and that You reserve all Intellectual Property Rights which may, at any time, subsist in Your Data.
6.2 You acknowledge that You have sole responsibility for and to ensure the legality, reliability, integrity, accuracy and quality of Your Data.
6.3 If at any time Us or any of Our Personnel are deemed to be the first owner of any Intellectual Property Right in or in relation to, Your Data, We will as soon as reasonably practicable assign or procure the assignment of, all such Intellectual Property Rights to You, and will do such things, and will procure that any of Our Personnel assigns and does all such things, as We consider reasonably necessary to give effect to this Condition.
USE AND BACKUP OF YOUR DATA
6.4 We will only store, copy or use Your Data to the extent necessary to perform Our obligations under the Agreement.
6.5 You acknowledge and agree that it is Your responsibility to separately maintain a suitable backup of Your Data and any Content. Whilst We may maintain back-up copies of Your Data and any Content, You acknowledge and agree that We do so only for operational reasons.
LOSS, CORRUPTION OR DEGRADATION OF, YOUR DATA
6.6 In the event that Your Data is corrupted or lost or degraded so as to be unusable, as a result of Us or Our Personnel, Your sole and exclusive remedy will be for Us to use reasonable commercial endeavours to restore or procure the restoration of Your Data that is corrupted, lost or degraded so as to be useable as soon as reasonably practicable, from the latest backup of Your Data maintained by Us in accordance with our internal procedures.
6.7 We will not be responsible for any loss, corruption, damage, alteration or disclosure of Your Data caused by any third party (except Our Personnel that are engaged by Us to perform services related to Your Data).
PROCESSING OF YOUR DATA
6.8 In respect of any Personal Data which We Process on Your behalf when performing Our obligations under the Agreement, You and We hereby agree that You will be the Data Controller and We will be a Data Processor and in any such case:
6.8.1 We will Process the Personal Data on Your documented instructions (including as set out in the Agreement), for the purposes of providing the Services;
6.8.2 We will take all measures required by Article 32 of the GDPR to ensure the security of the Personal Data;
6.8.3 We will take reasonable steps to ensure the reliability of Our Personnel who may have access to the Personal Data, and their treatment of the Personal Data as Confidential Information;
6.8.4 We will promptly, and in any case within five (5) Business Days, notify You of any communication from a Data Subject regarding the Processing of their Personal Data, or any other communication (including from a Regulatory Body) of which We are aware, relating to either party’s obligations under the Data Protection Laws in respect of the Personal Data;
6.8.5 We will notify You without undue delay upon becoming aware of any Personal Data Breach;
6.8.6 We will provide commercially reasonable assistance to You on request in relation to (i) any communication received under Condition 6.8.4; and (ii) any Personal Data Breach, including by implementing appropriate technical and organisational measures;
6.8.7 You acknowledge and agree that We are generally authorized to appoint third parties to Process the Personal Data (“SubProcessor”), subject to notifying You about our SubProcessors and otherwise meeting the conditions set out in Article 28 (2) and (4) of the GDPR;
6.8.8 You acknowledge and agree that the Personal Data may be transferred or stored outside the European Economic Area or the country where You and/or the Authorised Users are located in order to carry out the Services and Our other obligations under the Agreement. We will take such steps as are necessary to ensure the Processing is in accordance with Data Protection Laws;
6.8.9 We will provide You, upon reasonable request, with all information reasonably required to demonstrate compliance with Our obligations under this Condition 6.8, including permitting You, on reasonable prior notice, and no more than on one (1) occasion in any twentyfour (24) month period (except in the event of a Personal Data Breach), to inspect and audit the facilities used by Us to Process the Personal Data;
6.8.10 We will cease Processing the Personal Data upon the termination or expiry of the Agreement and, upon Your request, either return to You (in accordance with Condition 6.12) or securely delete the Personal Data;
6.8.11 You will ensure that You are entitled to transfer the relevant Personal Data to Us so that We may use, Process and transfer the Personal Data in accordance with the Agreement and Applicable Law, on Your behalf; and
6.8.12 You will ensure that all relevant Data Subjects have been informed of, and, where required, have given their consent to, such use, Processing, and transfer as required by all applicable Data Protection Laws.
6.9 The table in the Agreement Details describes the Personal Data Processing activities performed by Us on Your behalf under the Agreement.
6.10 You acknowledge and agree that We may from time to time monitor Your use of the Services and capture Your Data in relation to Your use of the Services, including through the use of Google Analytics and/or other analytics systems. We use these analytics to improve risk assessments given to clients as part of the Services, for fraud and crime prevention purposes, and to develop, improve Our service and to produce anonymised or pseudonymised and aggregated statistical reports and research.
6.11 We may use the number of Authorised Users, and data relating to the volume and categories of Your Data processed through the Services, to calculate and verify whether the Subscription Limit has been exceeded and/or whether fees are payable by You. We may analyse Authorised Users’ login metadata (including IP address, concurrent logins, and similar indicators) for security purposes to monitor Your compliance with Your obligations under the Agreement.
RETURN OF YOUR DATA
6.12 If on termination or expiry of the Agreement You require Us to return Your Data to You (including Your Data that resides on or within Our Software or Our systems), You will notify Us in writing within not more than three (3) months, and We will use reasonable commercial endeavours to deliver to You, to the extent We are able, the then most recent copy of Your Data that is in Our possession, subject to You having paid all sums outstanding at and resulting from termination (whether or not due at the date of termination) and You and Us agreeing the reimbursement of Our costs and reasonable expenses in relation to the return of Your Data. If You do not request return of Your Data within the three (3) month period, We reserve the right to delete Your Data.
7. THIRD PARTIES
7.1 You acknowledge that the Services may enable or assist You to share information with or access the information of, correspond with, and/or purchase products and services from, or sell products and/or services to, third parties, and that You do so solely at Your own risk.
7.2 We make no representation, warranty or commitment (and will have no liability or obligation) whatsoever in relation to the content or use of, or, correspondence or other dealings with, any thirdparty, or any transactions completed, and any contract entered into by You, with any such third party. Any contract entered into with, and any transaction completed via, any thirdparty is between You and the relevant third party, and not Us. We recommend that You refer to the third party’s relevant terms and conditions (if any) prior to any dealings with them. We do not endorse or approve any thirdparty nor the content of any of the third parties made available or obtained via the Services.
8. YOUR OBLIGATIONS
8.1 You will:
8.1.1 provide Us with all necessary cooperation requested by Us in relation to the Agreement and all information as may be required by Us in order to provide any of the Services, (and/or their set-up) including but not limited to Your Data, security access information and configuration services;
8.1.2 comply with all Applicable Laws with respect to Your activities under and/or related to the Agreement;
8.1.3 carry out Your responsibilities under the Agreement in a timely and efficient manner;
8.1.4 ensure that Your network and Your System comply with any relevant specifications provided by Us from time to time; and
8.1.5 be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your System to Our data centres, and all problems, conditions, delays, failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
8.2 Without prejudice to Our other rights and remedies, the nonperformance or delay in performance of Our obligations under the Agreement will be excused to the extent that such nonperformance or delay results from Your failure to comply with Your obligations under the Agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to Condition 9.4, You and We will hold the other’s Confidential Information in confidence and will not use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
9.3 You and We will take all reasonable steps to ensure that the other’s Confidential Information to which the relevant party has access is not disclosed by its employees or agents in violation of the terms of the Agreement.
9.4 You and We may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, provided that, to the extent the relevant party is legally permitted to do so, You or We (as the context requires) gives the other as much notice of such disclosure as possible and takes into account the reasonable requests of the other in relation to the content of such disclosure.
9.5 Neither You or We will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 You acknowledge that details of the Services, and the results of any performance or provision of the same, constitute Our Confidential Information. We acknowledge that Your Data is Your Confidential Information.
9.7 You and We will not make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed), except as required by Applicable Law or any relevant securities exchange, or as set out in Condition 9.8.
9.8 You acknowledge and agree that We may from time to time include reference to this Agreement, the Services and/or the fact that You are Our customer in publicity and/or marketing material to be issued by Us to third parties or generally including case studies. Where reasonably requested by Us, You will acting reasonably and in good faith act as a referee for Us with other potential customers for Services and/or other items which are the same as or similar to the Services.
9.9 The provisions of this Condition 9 will survive termination of the Agreement, however arising.
You will indemnify Us and keep Us indemnified in full and on demand from and against any and all claims, actions, proceedings, losses, damages, expenses, liabilities and/or costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Software, Services, and/or the use, receipt, provision, processing and/or making available of Your Data, Your Materials and/or the Content (save where but only to the extent that the relevant claim arises as a direct result of our breach of this Agreement).
11.1 Nothing in the Agreement will exclude or limit either party’s liability:
11.1.1 for death or personal injury caused by its (or its agent’s or subcontractor’s) negligence;
11.1.2 for any fraud, fraudulent misrepresentation or fraudulent or dishonest act or omission by either party or any member of that party’s Group or its officers, employees, agents or subcontractors; or
11.1.3 that cannot, as a matter of law, be limited or excluded.
LIMITATION OF LIABILITY
11.2 Subject to Conditions 11.1 and 11.4, We will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
11.2.1 any Excluded Losses, in each case whether direct or indirect (and regardless of whether We have been advised of the possibility of such losses or damages); or
11.2.2 any indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.
11.3 We provide You with the Services free of charge. Accordingly, and subject to Conditions 11.1 and 11.4, Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise will be limited to fifty pounds sterling (£50).
11.4 Except as expressly and specifically provided in the Agreement:
11.4.1 You assume sole responsibility for results obtained and conclusions drawn from the use of the Services, the Software and Our Material by You. We will have no liability for any damage caused by errors or omissions in any information, instructions, or data provided to Us by You in connection with the Services, or any actions taken by Us at Your direction;
11.4.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from the Agreement; and
11.4.3 the Services are provided to You on an “as is” basis.
MUTUAL TERMINATION WITHOUT CAUSE
12.1 You may terminate the Agreement with immediate effect at any time by giving written notice to Us.
12.2 We may terminate the Agreement with immediate effect at any time by giving no less than thirty (30) days written notice to You.
OUR TERMINATION FOR CAUSE
12.3 Without affecting any other right or remedy available to Us, We may terminate the Agreement with immediate effect at any time by giving written notice to You if:
12.3.1 the number of Subscriptions under the Agreement exceeds the Subscription Limit;
12.3.2 You commit a material breach of any term of the Agreement which is incapable of remedy;
12.3.3 You commit a material breach of any term of the Agreement which is capable of remedy and You fail to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
12.3.4 You suffer an Insolvency Event or there is a change of Control of You.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Agreement for any reason:
13.1.1 all licences granted by Us under the Agreement will immediately terminate and You will immediately cease all use of the Software, Services and Our Material;
13.1.2 You and We will return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other; and
13.1.3 any rights, remedies, obligations or liabilities of Yours and Ours that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination will not be affected or prejudiced.
14. FORCE MAJEURE
We will have no liability to You under the Agreement if We are prevented from or delayed in performing any of Our obligations under the Agreement, or from carrying on Our business, by acts, events, omissions or accidents beyond Our reasonable control, including, strikes, lockouts or other industrial disputes (whether involving Our workforce or that of any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (“Force Majeure Event”). We will notify You as soon as reasonably possible once We are aware that a Force Majeure Event has affected Our ability to perform the Agreement.
15. WAIVER AND CUMULATIVE REMEDIES
15.1 The rights and remedies of You and Us under, or in connection with, the Agreement may be waived only by express written notice to the other. Any waiver will apply only in the instance, and for the purpose for which it is given.
15.2 No right or remedy under, or in connection with, the Agreement will be precluded, waived or impaired by: any failure to exercise or delay in exercising it; any single or partial exercise of it; any earlier waiver of it (whether in whole or in part); or any of the foregoing in relation to any other right or remedy (be it of similar or different character).
15.3 The rights and remedies arising under, or in connection with, the Agreement are cumulative and, except where otherwise expressly provided in the Agreement, do not exclude any rights or remedies provided by law (including equitable remedies) or otherwise.
15.4 Any termination of the Agreement and/or parts thereof does not affect any accrued rights or liabilities of You or Us and nor does it affect the coming into force or the continuance in force of any provision of the Agreement that is expressly or by implication intended to come into or continue in force on or after such termination.
16.1 If any provision of the Agreement is or becomes illegal, invalid or unenforceable, in any respect:
16.1.1 it will not affect or impair the legality, validity or enforceability of any other provision of the Agreement; and
16.1.2 You and Us will use reasonable endeavours to negotiate in good faith with a view to amending such provision (or part provision), such that as amended it is legal, valid and enforceable and to the greatest extent possible achieve our original commercial intention with the minimum modifications necessary to make it legal, valid or enforceable.
17. ENTIRE AGREEMENT
17.1 The Agreement constitutes the entire agreement and understanding between You and Us in respect of its subject-matter and supersedes any previous agreement, warranty, statement, representation, understanding, or undertaking (in each case whether written or oral) given or made before the date of the Agreement by or on behalf of the parties and relating to its subject matter.
17.2 Subject and without prejudice to Condition 11.1, You confirm that You have not relied upon, and will have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by Us (or anyone acting on our behalf), unless that warranty, statement, representation, understanding or undertaking is expressly set out in the Agreement.
17.3 Subject to Condition 11.1, You will not be entitled to the remedies of rescission or damages for misrepresentation arising out of, or in connection with, any agreement, warranty, statement, representation, understanding or undertaking whether or not it is set out in the Agreement.
18. ASSIGNMENT AND OTHER DEALINGS
18.1 You will not, without Our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of Your rights or obligations under the Agreement.
18.2 We may, at any time, assign, transfer, charge, subcontract or deal in any other manner with all or any of Our rights or obligations under the Agreement.
19. RELATIONSHIP OF THE PARTIES
Nothing in the Agreement is intended to create a partnership, joint venture or legal relationship of any kind between You and Us that would impose liability upon You or Us for the act or failure to act of the other, or to authorise You or Us to act as agent for the other. Neither You or We will have authority to make representations, act in the name or on behalf of, or otherwise bind the other.
The Agreement will not prevent Us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar or identical to the Services, Software, and/or Our Materials.
21. THIRD PARTY RIGHTS
21.1 Except as provided in Condition 21.2, a person not a party to the Agreement will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. This Condition 21 does not affect any right or remedy of any person which exists, or is available, other than under the Contracts (Rights of Third Parties) Act 1999.
21.2 We may enforce any term of the Agreement on behalf of a member of Our Group. Without prejudice to the foregoing, any other member of Our Group may enforce any term of the Agreement which is expressly or implicitly intended to benefit it. Any Regulatory Body may enforce the terms of Condition 5.1.
21.3 Nothing in the Agreement is intended to restrict the rights of Us and You to vary, terminate or rescind the Agreement.
22.1 Any notice required to be given under the Agreement will be in writing and will be delivered by hand or sent by prepaid firstclass post or recorded delivery post to the other party at its address set out in the Agreement Details, or such other address as may have been notified by that party for such purposes (in accordance with this Condition).
22.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9.00 am (UK time) on the first Business Day following delivery). A correctly addressed notice sent by prepaid firstclass post or recorded delivery post will be deemed to have been received at the time recorded by the delivery service, provided that delivery is within Business Hours (or if delivery is not in Business Hours, at 9.00 am (UK time) on the first Business Day following delivery).
23. GOVERNING LAW AND JURISDICTION
23.1 The Agreement and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with the law of England and Wales.
23.2 You and We irrevocably agree that the courts of England and Wales will have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including noncontractual disputes or claims). However nothing in this Condition shall, where You are based outside of England and Wales, prevent Us from commencing proceedings against You in the courts of Your home jurisdiction.
VERSION 1.0 SEPTEMBER 2021