1. DEFINITIONS AND INTERPRETATION.
In this Agreement, capitalised words and expressions shall have the meaning given to them below:
1.1 “Agreement” means this written agreement and terms which govern your use of the service.
1.2 “Confidential Information” of a Party means (i) the content and existence of this Agreement, (ii) the existence of any discussions between the Parties concerning this Agreement, the Service, (iii) information relating to a Party’s businesses, financial conditions, or operations, including vendor information, customer information, marketing or business plans, forecasts, financial data, unpublished financial statements, budgets, licenses, pricing, costing, reports, analyses and personnel data, and (iv) information relating to a Party’s technology and know-how, including, any invention, product, formula, method, technique, composition, compound, project, development, plan, apparatus, equipment, trade secret, process, research, reports, technical data, software, software documentation, design or architecture, hardware design, technology. Confidential Information includes written information, information transferred orally, visually, electronically or by any other means by Discloser. Confidential Information does not include information which the Recipient can demonstrate (i) was or became generally available to the public other than as a result of a disclosure by the Recipient in violation of this Agreement; or (ii) was available, or becomes available to the Recipient on a non-confidential basis prior to its disclosure to the Recipient by the Discloser, but only if (a) the source of such information is not bound by this Agreement or is not otherwise subject to a contractual, legal, fiduciary or other obligation of confidentiality with respect to the information and (b) the Recipient provides the Discloser with written notice of such prior possession either (I) prior to the execution and delivery of this Agreement or (II) if the Recipient later becomes aware of (through disclosure to the Recipient or otherwise pursuant to this Agreement) any aspect of the Confidential Information of which the Recipient had prior possession, promptly upon the Recipient becoming aware of such aspect; or (III) is independently developed by the Recipient without use or reference to the Discloser’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession.
1.3 “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.4 “Deployment” means Supplier deploying a substantially functional instance of the Service for Customer use in accordance with this Agreement.
1.5 “Discloser” means the Party or its subsidiaries, affiliates, and Recipient’s and their agents, professional legal and accounting advisors, consultants, representatives, employees, officers, and directors disclosing Confidential Information.
1.6 “Downtime” means any period of time in which Service is not functioning in a material way or is not generally available via the Internet, other than such periods which have been previously agreed with Customers or periods of Maintenance.
1.7 “DP Act” means the Data Protection Act 1998 and Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data.
1.8 “Fees” means the fees relating to the Service as set out on Supplier’s website or otherwise agreed in writing by the Parties from time to time.
1.9 “IPR” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, copyright, and any intellectual property applications or right to apply for registration therefor, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first made or created before or after the Effective Date.
1.10 “Maintenance” means (i) any reasonable periods for installation of Updates so long as such installation is undertaken between the hours of 8:00 pm and 3:00 am GMT, or at such other time as may be provided by Supplier upon at least 5 days’ prior written notice to Customer, (ii) any denial of service attacks or other Downtime outside the reasonable control of Supplier, (iii) Downtime that arises out of actions or omissions of Customer, and (iii) any Downtime that arises out of Customer’s use of its own hardware or software with the Service which is not part of the functionality of the Service.
1.11 “Party” each of Supplier and Customer may be referred to herein as a “Party” and both as “Parties.”
1.12 “Recipient” means the Party receiving Confidential Information and its subsidiaries, affiliates, and Recipient’s and their agents, professional legal and accounting advisors, consultants, representatives, employees, officers, and directors.
1.13 “Service” means Supplier’s web application and any related application programming interface made available by Supplier, in its state as of the Effective Date which Supplier makes available to Customer at its sole discretion via the Internet or other internet protocol communications link and any Updates that Supplier may release during the provision of Service to Customer.
1.14 “Term” means the period commencing with Effective Date and continuing until this Agreement is terminated in accordance with Article 5 of this Agreement.
1.15 “Updates” means any subsequent customisation, further development, release, version, upgrade, workaround or bug fix of the Service.
1.16 “Users” means individuals who are authorised by Customer to use the Service, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords.
1.17 “In this Agreement a reference to: (a) clauses refer to clauses of this Agreement; (b) a “person” includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same shall include a reference to the others; (c) any Party include its successors (whether by operation of applicable law, regulation or otherwise) and permitted assigns; (d) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; (e) a word importing the singular shall (where appropriate) include the plural and vice versa; (f) “Data Controller”, “Data Processor”, “Data Subject” and “Personal Data” shall have the meanings given in the DP Act; and (g) any statute or statutory provision includes, the statute or statutory provision as amended, consolidated or re-enacted from time to time, and includes any subordinate legislation made under the statute or statutory provision (as so amended, consolidated or re-enacted).
2. WEB SERVICE
2.1 Customer will be responsible for preparation of any data for import, using templates and tools provided by the Supplier.
2.2 Supplier will make the Service available to Customer and Users during the Term in accordance with this Agreement. Supplier is responsible for the cost, operation, and maintenance of the Service and the network connections between the Service and the Internet. Customer is responsible for all computer hardware and software required to access the Service including establishing and maintaining Customer’s network connectivity and sufficient bandwidth (at least 64kbps) between Customer’s facilities and the Internet as well as any and all fees in relation to 3rd party services or software with which the Service may optionally interact.
2.3 Access to the Service is provided through User subscriptions and associated fees for add-ons or metered items. Customer’s access to the Service shall not exceed the number of User subscriptions it has selected using the appropriate options within the web application or by acceptance of a written quote by email. User subscriptions may be decreased at any time by using the appropriate options within the web application or by notifying Supplier via email, but Customer shall remain liable for all Monthly User Fees in respect of the inactive User subscriptions for a 30 day period following any change. User subscriptions may be increased during the Term. Where any new User subscription is added in a month, a full monthly User Fee shall be due in respect of that part month. All User subscriptions shall terminate on the date of termination of this Agreement. User subscriptions shall be provided to designated Users and not shared or used by more than one User, but Customer may re-assign User subscriptions.
2.4 Customer shall (a) use the Service only for lawful purposes; (b) not use, or authorise or permit any other person to use, the Service in any manner which infringes any law or regulation or which infringes the rights of any third party; (c) not post, link to or transmit any material, which is unlawful, threatening, libelous or otherwise tortious, abusive, malicious, defamatory, obscene, pornographic, or that contains a virus or other hostile computer program, or which constitutes, or encourages the commission of, a criminal offence, or which infringes any IPR of any person which may subsist under the laws of any jurisdiction; (d) interfere or attempt to interfere with the integrity of the Service; (e) attempt to gain access to third-party data contained on the Service; (f) keep secure any identification, password and other Confidential Information relating to Customer’s User accounts and shall notify Supplier immediately of any known or suspected unauthorised use or breach of security, including loss, theft or unauthorised disclosure of Customer’s User’s password(s) or other security information; (g) observe the procedures which Supplier may from time to time prescribe for the Service; (h) make no use of the Service, which is in the sole opinion of Supplier detrimental to other customers; (i) not make the Service available to anyone other than Users; and (j) procure that all email is sent in accordance with applicable legislation in a secure manner.
2.5 Supplier shall provide support to Customer for Service queries via the provided electronic support ticketing system between 9am and 5pm GMT, Monday through Friday, excluding public and bank holidays in Scotland, U.K (“Business Day”). Customer shall use the electronic support ticketing system of Supplier to report any issues with the Service.
2.6 Customer acknowledges that Supplier will from time to time during the Term be required to temporarily reduce or interrupt access to the Service to conduct Maintenance.
2.7 Supplier shall provide Service with a Downtime of no more than 5.0% per calendar month (the “Downtime Limit”). Should the Downtime Limit be exceeded, then for each full 60 minutes by which the Downtime Limit has been exceeded in a calendar month, Supplier shall refund to Customer an amount equal to 5% of the monthly User Fees paid by Customer for the month in which the Downtime Limit was exceeded. In case the Downtime Limit is exceeded by more than twelve hours per month in any two consecutive months, Customer shall also have a right to terminate this Agreement upon 7 days’ prior written notice so long as such termination occurs within 30 days of the end of the second month in which such Downtime Limit was exceeded. This clause 2.7 constitutes the sole remedy of Customer against Supplier for exceeding any Downtime Limit.
2.8 By submitting Customer Data to the Service, Customer shall be solely responsible for the accuracy, quality, integrity, legality and reliability of Customer Data and of the means by which it acquired Customer Data.
2.9. While Supplier will use every reasonable precaution to ensure the integrity and security of the Services and their connectivity to the Internet, Supplier does not guarantee that the Service will be free from unauthorised access or hackers and shall be under no liability for the authorised or unauthorised interception or dissemination of any materials or information or the non-receipt or misrouting of any such materials or information.
2.10. Supplier will at all times reasonably attempt to achieve the highest possible availability and shortest possible access time of the Service, but no warranties of any kind, regarding any specific availability or time of access are granted. The Service is hosted by Supplier, or a subcontractor of its choice. All data stored as part of the Service may be backed up on a regular basis. If Customers with a paid service plan experience loss of data, Supplier may use reasonable efforts to attempt to restore data from the most recent working backup; provided, however, Supplier gives no warranties with respect to recovering or restoring any lost Customer data. The User or Customer is always encouraged to make its own backups of all data stored on the Service.
2.11. Supplier is committed to constant improvement. As a result, Customer can expect that Services will change from time to time. In addition, Supplier may cancel portions of Services for any reason, including when customers indicate the need for a change, when the technology advances, or when it is no longer feasible or prudent to continue to offer them. In addition, Customer accepts that all functionality is delivered “as-is” and Customer agrees that the functionality meets their full needs and requirements.
3. GRANT OF USE RIGHTS AND RESTRICTIONS
3.1 Subject to the terms of this Agreement, Supplier grants Customer the right to access the Service only for internal purposes (which for purposes of this Agreement shall mean access only by employees, officers, and directors of Customer) during the Term in accordance with the access procedures and limitations set forth in this Agreement. Customer’s Users’ use rights are non-transferable, non-assignable, and non-sublicensable.
3.2 Customer will not be granted access to either the source or object code of the Service. Supplier retains ownership of and all other rights in the Service. Other than as expressly set forth herein, nothing in this Agreement grants Customer any right, title, license or interest in or relating to the Service and Supplier’s Confidential Information and Supplier reserves all rights, title and interest in and to the Service and its Confidential Information, including all related IPRs.
3.3 Customer agrees to maintain the copyright, trademark, and other notices that appear on the Service on all associated media. Except as otherwise provided in this Agreement, neither Party grants the other Party any rights to use its trademarks, service marks, or other proprietary symbols or designations without the written consent of the other Party.
3.4 Customer retains ownership of any IPRs in its Confidential Information (that does not consist of Updates) and in the Customer Data.
3.5 Supplier retains ownership of all IPRs in any Updates made by (whether or not authorised) or on behalf of Customer during the Term. All rights and title to any such IPRs are hereby transferred to Supplier, and Customer shall, at Supplier’s cost, execute and deliver to Supplier any documentation required to effect such transfer.
3.6 Save to the extent expressly permitted by applicable law, Customer will not allow its staff or any third party to, and will not: (a) reverse engineer, decompile, translate, disassemble or attempt to discover any source code, database structures or schemas, underlying ideas or algorithms of the Service, (bi) transfer, sell, lease, lend, disclose, use for timesharing or service bureau purposes, or permit web or other access by third parties to the Service or any portion thereof or otherwise commercialise the Software, (c) use, provide, or allow others to use Service for the benefit of any third party, (d) use Service or allow the transfer, transmission, export, or re-export, of the Service or portion thereof, in violation of any export control laws or regulations of the United Kingdom; (e) copy, frame or mirror any part of the Service other than for Customer’s own internal business purposes, or (f) access the Service to copy its features, functions or graphics.
3.7 Supplier alone (and its successor or assigns, or its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the technology, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, scripting, configuration, configuration data or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or intellectual property rights.
4. Fees and Payment Terms
4.1. Upon execution of this Agreement, Customer immediately shall pay to Supplier the subscription, and any applicable deployment, configuration and training charges as set out on the Supplier website or separate agreements to the Supplier using an agreed method of payment. The Customer shall continue to pay to Supplier the Monthly Fees determined by number of Users and usage of add-ons and any metered items for each month of use of the Service following the initial month. Such sum shall be due and payable on the same date each calendar month (give or take 2 business days). Customer is responsible for maintaining complete and accurate billing and contact information in respect of the Service. Except as otherwise provided in this Agreement, all Fees shall be non-refundable. Any amounts payable by Customer hereunder which remain unpaid 7 days after the due date shall be subject to a late charge equal to 1% per month, calculated on a daily basis, which interest will be immediately due and payable from the due date for payment until the date of actual receipt of the amount in cleared funds by Supplier. All funds payable by Customer to Supplier hereunder shall be paid without offset, sending bank charges, or receiving bank charges of any kind.
4.2. If any Fees owed by Customer are 15 days or more overdue, Supplier may, without limiting its other rights and remedies, suspend Customer’s access to the Service until such amounts are paid in full, save where the applicable Fees are subject to a reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
4.3 All Fees payable under this Agreement are payable in the currency displayed on the Supplier website or otherwise agreed in writing, exclusive of tax. Customer shall pay any taxes, and duties imposed by governmental agencies of whatever kind with respect to the Services including penalties and interest but specifically excluding any income taxes payable by Supplier. Such taxes will be paid by Customer “net 30 days” from the date of invoice or other notification from Supplier. In order to assist Supplier in obtaining tax credits or deductions, Customer shall provide to Supplier original or certified copies of all tax payments or other evidence of payment of taxes by Customer with respect to transactions or payments under this Agreement.
4.4 Supplier may increase Monthly Fees for once in any twelve month period at by the greater of seven percent (7%) or the rate of increase (if any) of the UK Retail Prices Index as published by the Office for National Statistics over the 12 month period ending in the month preceding that in which the proposed increase in Monthly Fees is to have effect. The increase will be based on the Monthly Fees published on the Supplier Website which would ordinarily have been paid by Customer and not any special promotional fees agreed with Customer which have since expired.
4.5 For any work not included within the Service, Customer and Supplier shall enter into a separate Professional Services Agreement setting forth the terms and conditions, including fees and due dates for such work.
4.6 All accounts are subject to account quotas and fair use policies, each paid user within the system is allocated a storage quota (for uploaded or system generated files) and a Client Connect user quota (system logon’s for clients of paid users), these are set at 250mb per user on storage and 50 Client Connect users per user. Extended account quotas are available and can be requested through emailing your sales representative. File uploads are limited to a maximum of 4mb per file, extended maximum file sizes can be requested through contacting your sales representative.
5. TERM AND TERMINATION.
5.1. The term of this Agreement (the “Term“) shall commence on the Effective Date and, subject to earlier termination as set forth below, will be ongoing. Either Party may terminate the Term at any time by providing the other Party with written notice of termination, such termination being effective on the last day of the month following the month in which the written notice is served. Where Customer so terminates, there shall be no refund of the subscription, deployment, configuration and training charges.
5.2 Either Party may, by written notice of default to the other, terminate this Agreement if the breaching Party fails to perform any material provision of this Agreement and does not cure the failure within 15 days after receipt of notice from non-breaching Party specifying the failure; or (b) in the event of either Party’s suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against either Party, appointment of a trustee or receiver for either party’s property or business, or any assignment, reorganisation or arrangement by either Party for the benefit of its creditors or any analogous proceedings in any other jurisdiction. Upon termination pursuant to this section, either Party may sue for damages subject to the limitations of this Agreement.
5.3 Supplier shall also be entitled, without prejudice to any other provision of this Agreement, to terminate this Agreement by written notice with immediate effect if Customer fails to pay any sum due under the Agreement for a period of 30 days or more after the due date for payment.
5.4 Upon termination of this Agreement for any reason, Customer shall cease all use of the Service. Following this thirty day (30) period, Supplier may delete all Customer Data from the Service and shall, unless otherwise required by law, have no obligation to maintain or provide any Customer Data thereafter.
6.1 To the best of Supplier’s knowledge and belief, the use of the Service for their proper purposes in accordance with the terms of this Agreement does not infringe the IPRs of any third party, however no warranty is given in this respect.
6.2 In the event of a claim arising due to a breach of Clause 6.1, Supplier may, in its sole discretion and at its option, (a) procure for Customer the right to continue to use the Service, (b) replace or modify any part of the Service with software/services providing at least the same functionality as the Service, or (c) modify the Service to make it non-infringing, so long as there is no decrease in functionality. If Supplier determines that it is not commercially reasonable to perform any of these alternatives, Supplier shall have the option to terminate the Agreement insofar as it relates to the infringing Service.
6.3 In no event will Supplier have any obligations under this clause 6 or any liability for any claim or action if the claim or action is caused by, or results from: (a) Customer’s combination or use of Service with non-Supplier software or services, products or data (other than software, services, products or data with which the Services is intended to be used), if such claim or action would have been avoided by the non-combined or exclusive use of the Service as the case may be, (b) Customer’s continued allegedly infringing activity after being provided modifications that would have avoided the alleged infringement, (c) Customer’s use of the Service in a manner not strictly in accordance with this Agreement, (d) Supplier’s modification of the Service in compliance with Customer’s specifications, or (d) Customer’s use of other than Supplier’s most current version of Service if the claim or action would have been avoided by use of the most current release.
6.4 To the extent permitted by law, the foregoing states Supplier’s entire liability to Customer for infringement of third party rights and is in lieu of any and all other remedies available to the Customer.
6.5 Customer shall defend and indemnify Supplier against: (a) any claim, demand, suit or proceeding made or brought against Supplier by a third party alleging: (i) facts that, if true, would constitute a violation by Customer of its obligations as Data Controller under the DP Act; or (ii) that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes or misappropriates the IPRs of a third party, and (b) any damages awarded by a final court decision or to be paid pursuant to a final binding out-of-court settlement to which Supplier is a party, and for legal fees incurred by, Supplier in connection with any such claim, demand, suit or proceeding.
7. LIMITED WARRANTIES AND DISCLAIMERS.
7.1 Supplier warrants that the Service shall perform materially in accordance with the terms of this Agreement but other than as aforesaid, insofar as liability may lawfully be excluded or limited, the Service is provided “as is,” without any warranty whatsoever.
7.2 This warranty is exclusive and in lieu of all other warranties whether express or implied, as to any matter whatsoever, including any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose and non-infringement.
7.3 The foregoing (and the remedies set out in this Agreement) states Supplier’s entire liability and Customer’s sole and exclusive remedy for breach of warranty / performance.
7.4 Customer warrants that it will comply with the DP Act in collecting, compiling, storing, accessing and using Customer Data in connection with this Agreement, including in the Service.
8. LIMITATION OF LIABILITY.
8.1 Nothing in this Agreement excludes or in any way limits either Party’s liability for: (a) fraud or fraudulent misrepresentation; (b) death, or personal injury caused by negligence; (c) the indemnities set out in this Agreement under clauses 6.5 and 9.4; (d) a breach of clause 9; and/or (e) any liability to the extent the same may not be excluded or limited as a matter of law.
8.2 Subject to clause 8.1, Supplier shall not be liable to Customer under or in connection with the terms of this Agreement for any and all of the following, howsoever arising, whether or not such loss or damage was foreseeable or in the contemplation of the parties to this Agreement and whether arising out of breach of contract, tort (including negligence), breach of statutory duty or otherwise: (a) loss of opportunities; (b) loss of income; (c) loss of actual or anticipated profits; (d) loss of business; (e) loss of contracts; (f) loss of goodwill or reputation; (g) loss of anticipated savings; (h) loss of, damage to or corruption of data; or (i) indirect, special, or consequential loss or damage of any kind.
8.3 Subject to clauses 8.1 and 8.2, Supplier’s entire liability whether arising out of breach of contract, tort (including negligence), breach of statutory duty, or otherwise to the Customer and/or any other person in respect of any claims or losses of any nature, arising directly or indirectly, from this Agreement shall be limited in aggregate respect of all incidents or series of incidents occurring in any one calendar year in respect of Services as applicable the greater of: (i) the Fees paid under this Agreement in the previous month ; and (ii) £500.
8.4 The Customer acknowledges and agrees that it shall bring any claim arising under or relating to this Agreement within 3 months from the date of the claim arising, or, if later, within 3 months from the date the Customer first became aware of the matters leading to the claim, and failure to do so shall result in any such claim automatically and irrevocably expiring.
8.5 Supplier shall have no liability to Customer, and Customer shall have no right or remedy against Supplier, for any delay by Supplier in performing or complying with, or any failure by Supplier to perform or comply with any obligation under or term of this Agreement to the extent that such delay or failure is attributable to any act or omission of or by Customer or any of its employees, agents or contractors.
8.6 The exclusions and limitations or liability under this clause 8 shall have effect in relation both to any liability expressly provided for or contemplated under this Agreement and to any liability arising or incurred by reason of the invalidity or unenforceability, in whole or in part, or any term of this Agreement.
8.7 Subject to clause 8.1, this Agreement sets forth the full extent of Supplier’s obligations and liabilities arising out of or in connection with this Agreement or any collateral contract, and there are no conditions, warranties, representations or terms, express or implied, that are binding on Supplier except as specifically stated or contemplated in this Agreement. Subject to clause 8.1, any condition, warranty, representation or term concerning the performance of the Services which might otherwise be implied into or incorporated in this Agreement or any collateral contract, whether by statute, common law or otherwise, is expressly excluded.
9.1 The Recipient will keep confidential all of the Discloser’s Confidential Information, and each Party when Recipient will disclose the Confidential Information to other Recipient parties who have a specific need to know such Confidential Information for purposes of this Agreement. The Recipient will ensure that all Confidential Information is properly protected against theft, damage, loss, or unauthorised access.
9.2 The Recipient will not use the Discloser’s Confidential Information (a) in any manner whatsoever, in whole or in part, other than for purposes of this Agreement, (b) in any manner detrimental to the Discloser, or (c) other than as contemplated by this Agreement, for the benefit of any of the Recipient, or any outside party.
9.3 In the event that the Recipient becomes legally compelled by a valid order of a court or other governmental agency to disclose any of the Discloser’s Confidential Information, the Recipient will provide the Discloser with at least 10 days prior written notice (or such shorter period if a response or answer is due within fewer than 10 days) of its intention, as the case may be, to comply with such order for disclosure so that the Discloser may seek a protective order or other appropriate remedy to obtain confidential treatment of such Confidential Information. If such protective order or other appropriate remedy is not obtained, under compliance with the provisions of this Agreement, the Recipient shall furnish only that portion of the Confidential Information, which the Recipient’s counsel reasonably concludes is legally required to be furnished to avoid standing liable for contempt or suffering other censure or penalty.
9.4 The Parties acknowledge and agree that the Discloser may suffer irreparable harm if the Recipient breaches any provision of this Agreement, and that damages may not be an adequate remedy in the event of a breach or threatened breach of this Agreement. The Recipient agrees that, in addition to all other remedies, the Discloser will be entitled to seek injunctive or other appropriate equitable relief against the Recipient and the Recipient Representatives in the event of such breach or threatened breach without proof of actual damages and without any requirement to post a bond or provide other security. The Recipient agrees to indemnify and hold the Discloser harmless from any and all direct foreseeable loss, which may reasonably be expected to result from the Recipient’s breach of this Agreement, but none shall be entitled to special, indirect or consequential damages hereunder.
10. DATA PROTECTION
10.1 Customer consents to Supplier acting as Data Processor of any Customer Data which is Personal Data. Where acting as Data Processor, Supplier will: (a) process such Personal Data only on Customer’s instructions and only to the extent necessary for the performance of Supplier’s obligations pursuant to this Agreement; (b) not disclose such Personal Data to any person except as required by the DP Act, permitted by this Agreement or with Customer’s prior written consent; and (c) implement appropriate technical and organisational measures to protect such Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing.
10.2 By submitting any Customer Data which is Personal Data to the Service, Customer acts as Data Controller and shall (a) have sole responsibility for the accuracy, quality, integrity, legality and reliability of such Personal Data and of the means by which it acquired such Personal Data. Where Supplier processes Personal Data on Customer’s and/or its client’s behalf and in accordance with Customer instructions, Customer undertakes that it shall have all permissions necessary to do so from the Data Controller and/or Data Subject and that Supplier’s processing will not be in breach of the DP Act.
Supplier may issue a press release or advertisement or make any other public comment relating to the Agreement or the subject matter thereof without the prior written approval of Customer.
12.1 Any notice or reports given under this Agreement shall be in writing and in the English language and shall be sufficiently given or made if: (a) delivered by overnight courier during normal business hours on a Business Day and left with a receptionist or other responsible employee of the relevant Party at the applicable address first set forth above; or (b) sent by facsimile transmission during normal business hours on a Business Day to a known working fax number of the addressee with confirmed delivery; or (c) by hand delivery on the date and at the time of delivery; or (d) sent by post shall be sent by first class post and shall be deemed received on the second Business Day after posting; or (e) sent by email on a Business Day before 4.30p.m, shall be deemed received on that day. In any other case, they shall be deemed received on the next Business Day after the day on which it was sent.
12.2 Each notice sent in accordance with this clause shall be deemed to have been received: (a) if delivered by overnight courier, on the day it was delivered, or on the first Business Day thereafter if the day on which it was delivered was not a Business Day; or (b) if faxed, on the same day that it was sent by fax, or on the first Business Day thereafter if the day on which it was sent by fax was not a Business Day.
12.3 Either Party may change its address for notice by giving written notice to the other Party as provided in this clause.
13. Survival of Terms.
Clauses 1, 3, 4, 5, 6, 8, 9, 10 – 14, 16 and 17 will survive the termination or expiry of this Agreement and remain binding upon and for the benefit of the Parties, their successors and permitted assignees.
Customer agrees to allow a mutually acceptable independent certified public accountant to audit and analyse Customer’s compliance with the terms of this Agreement. Any such audit shall be permitted by Customer within 30 days of Supplier’s written request during normal business hours and at times mutually agreed upon by Customer and Supplier. Audits shall be made no more frequently than once every 12 months, and shall not unreasonably interfere with Customer’s business activities.
15. FORCE MAJEURE
Supplier shall not be liable to Customer for failure or delay in the performance of a required obligation (other than payment of Fees due) if such failure or delay is caused by strike, riot, fire, flood, earthquake, natural disaster, electronic virus, electronic attack or infiltration, internet disturbance, government act or other similar cause beyond Supplier’s control, provided that Supplier gives reasonable written notice of such condition and resumes its performance as soon as possible, and provided further that Customer may terminate this Agreement if such condition continues for a period of 180 days.
16. GOVERNING LAW, AND JURISDICTION.
The Agreement (and any non-contractual obligations arising out of or in connection with the Agreement) shall be governed by the laws of Scotland. The Parties consent to the exclusive jurisdiction of the Scottish Courts in relation to any legal action or proceedings arising out of or in connection with the Agreement.
17.1 This Agreement shall not be assigned, which term shall include by operation of law by reason of merger, consolidation, reorganisation or the like, by Customer without the prior written consent of Supplier.
17.2 The parties hereto are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties hereto. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and either Supplier or any employee or agent of Supplier. Both parties shall be responsible for performing their respective obligations as set forth herein.
17.3 The failure of either Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the Party against whom enforcement is sought.
17.4 This Agreement, constitutes the entire agreement of the parties hereto relating to the matters covered by this Agreement, and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.
17.5 Supplier may make updates and changes to this Subscription Agreement from time to time.
17.6 If any term of this Agreement is found to be illegal, invalid, or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
17.7 Nothing in this Agreement is intended for the benefit of any third party, and the parties do not intend that any term of the Agreement should be enforceable by a third party either under the Contracts (Rights of Third Parties) Act 1999 or otherwise.