(A) The Supplier has developed certain cloud software applications and platforms which it makes available to subscribers via the internet on a subscription basis.
(B) The Client wishes to use the Supplier's service in its business operations.
(C) The Supplier has agreed to provide and the Client has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.
1.1 The Supplier shall, during the Subscription Term, provide the Services the Client on and subject to the terms of this agreement.
1.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window which will be as follows:
(i) for UK customers, between Midnight and 2:00 am GMT;
(ii) for Australian clients, between Midnight and 2:00 am AEST; and
(iii) for United States clients, between Midnight and 2:00 am EST.
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Client at least 6 Normal Business Hours' notice in advance.
2. Supplier's obligations
2.1 The Supplier undertakes that the Services will be performed substantially with reasonable skill and care.
2.2 The undertaking at 2.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in 2.1.
2.3 The Supplier:
(a) does not warrant that:
(i) the Client's use of the Services will be uninterrupted or error-free; or
(ii) that the Services and/or the information obtained by the Client through the Services will meet the Client's requirements; or
(iii) the Services will be free from Vulnerabilities or Viruses.
(b) is 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 the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
2.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
2.6 The Supplier shall follow its archiving procedures for Client Data. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up for which it shall remain fully liable).
3. Client's obligations
3.1 The Client shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Client Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
4. User subscriptions
4.1 Subject to the Client purchasing the User Subscriptions in accordance with clause 5.2 and clause 7.1, the restrictions set out in this clause 4 and the other terms and conditions of this agreement, the Supplier hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Client's internal business operations.
4.2 In relation to the Authorised Users, the Client undertakes that:
(a) where the maximum number of Authorised Users that it authorises to access and use the Services exceeds the number of User Subscriptions it has purchased the Client will be billed for those Additional User subscriptions in accordance with clause 3;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;
4.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.
4.4 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 4; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
4.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
4.6 The rights provided under this clause 4 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client.
5. Additional user subscriptions
5.1 Subject to clause 5.2, the Client may, from time to time during any Subscription Term, add additional User Subscriptions in excess of the number set out in the Subscription Summary and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
5.2 The Additional User Subscriptions Fees will be calculated on a prorated basis at the end of each quarter retrospectively for the additional users added. These additional users will be added to the number of users billed at the beginning of each quarter and will form the basis of calculating the new total per year payable quarterly in advance.
5.3 If the Client adds additional User Subscriptions in accordance with clause 5.1, the Client shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are added by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
6. Data protection
6.1 For the purposes of this clause 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
6.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
6.4 Should the determination in clause 6.2 change, then each party shall work together in good faith to make any changes which are necessary to this clause 6 or the related schedules.
6.6 Without prejudice to the generality of clause 6.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Client Personal Data to the Supplier and lawful collection of the same by the Supplier for the duration and purposes of this agreement.
6.8 Without prejudice to the generality of clause 6.2 the Supplier shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, unless the Supplier is required by Applicable Data Protection Laws to otherwise process that Client Personal Data. Where the Supplier is relying on Applicable Data Protection Laws as the basis for processing Client Processor Data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Legislation;
(b) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(c) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(e) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 6.8(e) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
(f) maintain records to demonstrate its compliance with this clause 6.
6.9 The Client hereby provides its prior, general authorisation for the Supplier to:
(a) appoint processors to process the Client Personal Data, provided that the Supplier:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 6;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
6.10 Either party may, at any time on not less than 30 days' notice, revise clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
6.11 Subject to clause 11.2, and notwithstanding any other terms of this agreement, the Supplier's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract insofar as it relates to the obligations set out in this clause 6, or Applicable Data Protection Laws shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
7. Charges and payment
7.1 The Client shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 7 and the Subscription Summary.
7.2 The Client shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
(a) its credit card details to the Supplier, the Client hereby authorises the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 12.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its bank account details to the Supplier, the Client hereby authorises the Supplier to direct debit such bank account:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 12.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(c) its approved purchase order information to the Supplier, the Supplier shall invoice the Client:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Client shall pay each invoice within 30 days after the date of such invoice.
7.3 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Client, disable the Client's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in the currency stated on the Subscription Summary;
(b) are, subject to clause 11.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
7.5 If, at any time whilst using the Services, the Client exceeds the amount of disk storage space, the Supplier shall charge the Client, and the Client shall pay, the Supplier's then current excess data storage fees.
7.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions added pursuant to clause 5.2 and/or the excess storage fees payable pursuant to clause 7.5 at the start of each Renewal Period upon 90 days' prior notice to the Client and the Subscription Summary shall be deemed to have been amended accordingly.
8. Proprietary rights
8.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
8.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to clause 9.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
9.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
9.6 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
9.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9.8 The above provisions of this clause 9 shall survive termination of this agreement, however arising.
10.1 The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Services, provided that:
(a) the Client is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and
(c) the Client is given sole authority to defend or settle the claim.
10.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the Client's use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Client's use of the Services in a manner contrary to the instructions given to the Client by the Supplier; or
(c) the Client's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
10.5 The foregoing and clause 11.3(b) states the Client's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of liability
11.1 Except as expressly and specifically provided in this agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client's direction;
(b) 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 this agreement; and
(c) the Services are provided to the Client on an "as is" basis.
11.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12. Term and termination
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(c) to 12.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
12.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and
(d) any rights, remedies, obligations or liabilities of the parties 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 shall not be affected or prejudiced.
13. Force majeure
The Supplier shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or 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, pandemic, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
The Supplier may vary any provision or part provision of this agreement (except any Subscription Summary). If the Supplier makes a material change to the agreement, the Supplier will provide the Client with reasonable notice prior to the change taking effect. The Client can review the most current version of the agreement at any time by visiting this page. The materially revised agreement will become effective on the date set forth in the Suppliers notice, and all other changes will become effective upon posting of the change, If the Client (or any Authorised User) accesses or uses the Services after the effective date, that will constitute the Client’s acceptance of any revised provisions.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire agreement
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
23.2 Transmission of the relevant signature page(s) of this agreement together with a copy of this agreement by email (in PDF, JPEG or another agreed format) shall take effect as delivery of an executed counterpart of this agreement. If this method of delivery is adopted, without prejudice to the validity of this agreement made, no exchange of originals is necessary.
23.3 No counterpart shall be effective until each party has delivered to the other at least one executed counterpart.
24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (if a company) or (in the case of an individual) their last known address; or (ii) sent by email to any email address that the recipient regularly uses.
24.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
(c) if sent by email, at 9.00 am (local time) on the next Business Day after transmission.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Governing law and Jurisdiction
The parties agree that this agreement shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims).
26. Definitions and Interpretation
26.1 The definitions and rules of interpretation in this clause apply in this agreement.
Applicable Data Protection Laws: means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services, as further described in 4.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 or clause 9.6.
Client: has the meaning given to it in the Subscription Summary.
Client Data: the data inputted by the Client, Authorised Users, or the Supplier on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services.
Client Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
Effective Date: the date of this agreement.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Initial Subscription Term: the initial term of this agreement will be a minimum of one year.
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Purpose: the purposes for which the Client Personal Data is processed, as set out in clause 6.8(a).
Renewal Period: the period described in clause 12.1.
Services: the software subscription services provided by the Supplier to the Client under this agreement via https://www.cloudcapcha.com/ or any other website notified to the Client by the Supplier from time to time.
Subscription Fees: the subscription fees payable by the Client to the Supplier for the User Subscriptions, as set out in the Subscription Summary.
Subscription Summary: means the subscription summary entered into between the Client and the Supplier.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Supplier: has the meaning given to it in the Subscription Summary.
Supplier Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a controller.
User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 7.1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Virus: 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 re-arranging, 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.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
26.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
26.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors or permitted assigns].
26.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
26.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
26.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
26.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
26.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
26.9 A reference to writing or written includes faxes but not e-mail.
26.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
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