THIS AGREEMENT APPLIES TO ALL USE OF, INCLUDING ANY FREE TRIAL OR PAID USER SUBSCRIPTIONS TO, THE SQUIRREL365 PRODUCT and is dated, as between you the Customer and us the Supplier, as of the date that your PAID LICENSE or FREE TRIAL Subscription commences. The Term of your individual User Subscription will commence on the date set out in the Order Confirmation or other receipt/acknowledgement that we send to you which contains your license key information used to activate your User Subscription.
IMPORTANT NOTICE TO ALL USERS:
* ON COMPLETION OF THE APPLICABLE SET-UP AND/OR INSTALLATION OF THE SQUIRREL365 DESIGNER, OR ANY OTHER APPLICABLE SQUIRREL365 PRODUCT, BY CLICKING THE “ACCEPT” BUTTON YOU THEREBY AGREE TO THE TERMS OF THIS LICENSE WHICH WILL BIND YOU, YOUR BUSINESS AND YOUR CO-USERS.
* THE TERMS OF THE LICENSE INCLUDE, IN PARTICULAR, DIFFERENT LIMITATIONS ON LIABILITY FOR FREE TRIAL AND PAID LICENSES. FREE TRIALS ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, WHATSOEVER.
* IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, THE SOFTWARE WILL NOT BE AVAILABLE FOR USE AND YOU MAY NOT DOWNLOAD OR STREAM OR IN ANY OTHER WAY ACCESS THE SOFTWARE OR DOCUMENTS INCLUDING BUT NOT LIMITED TO ANY SQUIRREL365 PRODUCT.
(1) InfoSol Limited (trading as “Squirrel365”) incorporated and registered in England and Wales with company number 08147523 whose registered office is at Suite 1a Shire Business Park, Wainwright Road, Worcester, WR4 9FA, UK (the Supplier);
(2) You, the customer as named in the Order Confirmation that we send to you (the Customer).
(A) The Supplier has developed certain software applications and platforms advertised under the product name “Squirrel365” which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of improving the commercial presentation of data by the use of visual aids.
(B) The Customer wishes to use the Supplier’s Services in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s Services subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those individual and distinct sole traders, partners, named employees, agents or independent contractors of the Customer who are individually authorised by the Customer to use the Services and the Documentation, as further described in clause 2.4(e).
Business Day: a day other than a Saturday, Sunday or public holiday in England; a day when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
CPU: means the central processing unit of a computing device able to run or execute the programs and or functions, or part thereof, generally constituting the Software.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Documentation: the documents, manuals, guides and the like made available to the Customer by the Supplier online via https://squirrel365.io/ or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Draft Project: any Project created by any user that is not a Live Project.
Effective Date: the date of this agreement.
Free Trial: means a Subscription that is not a Paid License.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Subscription Term: the initial term of the Subscription as set out in the Order or Trial Confirmation.
Licensed Software: means the part(s) of the Software that are downloadable onto the Customer’s Systems. This includes but is not limited to the Squirrel365 Designer product.
Live Project: is a published Project that has been moved to Live and accessible to viewers. For clarity, if a Live Project contains a common set of data for all viewers, this is classified as one Live Project, however, if an individual viewer is presented with a personalized view of data in the Live Project, each dynamic view will be deemed to be a separate Live Project.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order Confirmation: means either the confirmation email or receipt we send to you following a placement of an order for either a Paid License or Free Trial by you for our Services including for any Renewal Term following our receipt of payment from you. The Order Confirmation may contain the License Key you need to activate the Subscription and it will set out the Subscription Term applicable to your order.
Paid License: means a Subscription that is not a Free Trial.
Project: is the published viewable content of the Squirrel Software. Project can have one of two states. A Project can only ever be either in a Draft or Live state. A Project can move from Draft state to Live state and from Live state to Draft state.
Renewal Period: the period described in clause 14.1.
Services: the subscription services provided by the Supplier to the Customer under this agreement via https://squirrel365.io/ or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation or any offline or downloadable version or other similar copy of the Services or the Software.
Software: the Squirrel365 computer software, the data supplied with the software, and the associated media and any add-ons developed from time to time provided by the Supplier as part of the Services and, additionally, shall be interpreted as including a reference to the Licensed Software except where expressly stated to the contrary.
Subscription: refers to either a Free Trial or a Paid License relating to the Licensed Software, as set out in the Order Confirmation.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order Confirmation or the receipt attached or expressly referred to in that Order Confirmation.
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services: the support services carried out by the supplier according to either the Support Services Policy or other bespoke arrangements for support of the Software and/or Services that the parties may agree in writing from time to time.
Support Services Schedule: the Supplier’s policy for providing support in relation to the Services as made available at https://squirrel365.io/support-policy or such other website address as may be notified to the Customer from time to time.
UK Data Protection Legislation: 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.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement on a single CPU.
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.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 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.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 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.
1.8 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.
1.9 A reference to writing or written includes e-mail but not faxes.
1.10 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.
2.1 Subject to the Customer procuring a Paid License in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub licenses, to permit each Authorised User to use the Services and the Documentation during the Subscription Term solely:
(a) for the Customer’s internal business operations; and
(b) on up to a total of (3) three registered Devices per Authorised User, unless otherwise stated in the Order Confirmation; and
(c) up to the total number of Live Projects set out in the Order Confirmation; and
(d) up to 1,000 Draft Projects.
2.2 Where the Customer has subscribed to a Free Trial version of the Services, subject to the Customer’s acceptance of the restrictions set out in this agreement:
(a) the Supplier grants to the Customer a limited, revokable, non-exclusive, non-transferable right, without the right to grant sub licenses to make use of the Services and Documentation solely for its own internal business purposes:
(i) subject to any cap, limitation or other disabling of functionality the Supplier determines from time to time as being in its commercial interest to introduce into the Free Trial Software;
(ii) to use Software and Documentation on one (1) Central Processing Unit at a time (i.e. one (1) concurrent Authorised User); and
(iii) to make a single backup copy of the Software, if strictly required.
(b) all warranties set out in this agreement or otherwise implied by law are excluded to the fullest extent legal possible and the Services as instead provided on an “as-is” basis;
2.3 The Supplier may revoke and terminate any Free Trial license with immediate effect at any time, acting without discretion and with or without notice to the Customer, without any liability to the Customer for any loss arising from such termination.
2.4 In relation to the Authorised Users, the Customer undertakes that:
(a) Each Authorised User shall use one (1) device to make use of the Software and Documentation, which shall be fixed and may not be amended or changed without the Supplier’s prior written approval.
(b) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions or other applicable usage limitations associated with the relevant Subscription from time to time;
(c) 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 and/or Documentation and the Customer shall take appropriate steps to disable passwords/access to ensure this has occurred;
(d) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than in accordance with the Customer’s own password and information security policy standards and that each Authorised User shall keep their password confidential;
(e) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times in the event that the Supplier reasonably requires such information to audit the Customer’s compliance with the terms of this agreement;
(f) it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(g) if any of the audits referred to in clause 2.4(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(h) if any of the audits referred to in clause 2.4(f) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out on the Supplier’s website for the relevant Services, notwithstanding any discount set out or otherwise included in the Order Confirmation, within 10 Business Days of the date of the relevant audit.
2.5 Notwithstanding any other provision or agreement to the contrary, the Customer shall not ever be permitted to 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;
(f) is, in the reasonable opinion of the Supplier, a breach of any contract or policy applicable to the Services, including but not limited to any community rules or Acceptable Use terms which may be imposed by the Supplier from time to time by publication on its website or as otherwise supplied alongside the Services or notified to the Customer in writing from time to time; or
(g) is otherwise illegal or causes or is likely to cause damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights in relation to the Customer, to disable the Customer’s access, or any third party access, to any material that breaches the provisions of this clause.
2.6 The Customer 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 Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(iii) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(iv) is not unnecessarily disclosed or communicated without our prior written consent to any third party;
(v) is not used to create any software which is substantially similar to the Software; and
(vi) is not used to create any programme intended to circumvent or defeat any technological prevention measures used to manage our rights which may be included in the Software or Documentation.
(vii) ; or
(b) make any attempt to circumvent, remove or otherwise frustrate the function of any Technological Prevention Measures (TPMs) included within the Services;
(c) make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(e) use the Services and/or Documentation to provide services to third parties; or
(f) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
(h) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
2.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.8 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.9 Nothing in this clause shall prevent the Customer from making use of the Services for its own business purposes in order to produce an output, distinct and separable from the Services themselves, which the Customer may then share with its own prospects, customers, staff and other third parties (“Viewers) with whom it interacts with naturally for its own business purposes. The number of Viewers shall be unlimited.
2.10 For the avoidance of any doubt the Customer may not provide services to its own customers which are similar to the Services in any way and may not act, for example, as a service bureau, reseller or similar in relation to the Services.
2.11 Breach of any provision of this clause 2 shall be considered a material breach of this agreement by the Customer, in addition and without limitation or prejudice to any other material term of this agreement, which may entitle the Supplier to seek damages in the form of monetary compensation from the Customer to reflect any loss, prospective or otherwise, suffered or likely to be suffered by the Supplier as a result of such breach.
3. ADDITIONAL USER SUBSCRIPTIONS AND LICENSE UPGRADES
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the relevant Order Confirmation and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, or to upgrade from a Free Trial to a Paid License, the Customer shall notify the Supplier in writing either by email request or by completing the relevant online form made available to the Customer from time to time. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall amend the applicable Subscription(s) within a reasonable amount of time of its approval of the Customer’s request.
3.3 If the Supplier approves the Customer’s request to amend or upgrade a Subscription, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional charges as are set out in the Order Confirmation relating to that amended Subscription.
3.4 The Supplier may grant to the Customer an expanded or upgraded License to use the Services, if expressly agreed in writing with the Supplier in each case. Where such an expansion or upgrade to the License is agreed, it shall be recorded as a variation to this agreement and shall take precedence over the standard licensing terms set out herein. The Supplier will expressly set out the scope of any expanded or upgraded license and confirm the parameters of that new Subscription in a revised Order Confirmation to the Customer where applicable.
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 Other than in relation to any Free Trial, 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 of between 12:00am and 5:00am UK time each Wednesday; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 hours notice in advance;
4.3 Other than in relation to any Free Trial the Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Schedule in effect at the time that the Services are provided. The Supplier may amend the Support Services Schedule in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates by separate agreement with the Supplier.
4.4 Other than in relation to any Free Trial, without prejudice to any material breach of this agreement, the Customer’s sole and exclusive remedy for any failure or unavailability of the Services shall be for the Supplier to use commercial endeavours to fix or repair or replace the affected Services in accordance with the response and service standards set out in the Supplier’s Support Services Schedule in force from time to time as updated by written notice to the Customer or as the Supplier makes generally available on its website.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 Excluding any Free Trial, the Supplier shall use reasonable endeavours to ensure that its hosting services provider follows its archiving procedures for Customer Data as described in its backup policy, as such document may be amended by the Supplier in its sole discretion by notice to the Customer from time to time “Back-Up Policy”. Unless otherwise notified, the Back-Up Policy shall include rolling mirrors taken once every 24 hours which shall be kept according to rolling 30 day retention cycle. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.9). The Customer accepts that it should take regular backups of its own data should it wish to guard against the potential loss of up to 24 hours of its data.
5.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.5 The parties acknowledge that:
(a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
(c) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement.
5.6 Without prejudice to the generality of clause 5.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
5.7 Without prejudice to the generality of clause 5.4, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
5.8 Each party shall ensure that it has in place appropriate technical and organisational measures, details of which shall be provided upon request, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.9 The Customer consents to the Supplier appointing hosting services and other IT security services providers as a third-party sub-processors of personal data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement either on that third party’s own terms or another agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party sub-processor appointed by it pursuant to this clause 5. The Supplier shall keep and maintain a list of any applicable sub-processors available to the Customer upon written request.
6. THIRD PARTY PROVIDERS
7. SUPPLIER’S OBLIGATIONS
7.1 Excluding Free Trials, the Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 Excluding Free Trials, the Supplier warrants that the Licensed Software will comply with its specification as described in the Documentation for a period of 30 days.
7.3 The undertaking at clause 7.1 and the warranty at clause 7.2, shall not apply to the extent of any non-conformance which is caused by use of the Services (including but not limited to the Licensed Software) 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 Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.4 The Supplier:
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free;
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements or immediately operate on recently or unexpectedly updated browsers or other relevant interfaces;
(iii) the Software or the Services will be free from Vulnerabilities; or
(iv) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(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 any third party API or integration, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.5 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.
7.6 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer 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 Customer 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 Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’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 and the Documentation 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 licenses, 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 any 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 Customer’s network connections or telecommunications links or caused by the internet.
(h) comply with all applicable technology control or export laws and regulations applicable from time to time; and
(i) include and not remove or obscure any copyright notice on all entire and partial copies the Customer makes of the Software on any medium.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Subscription Fees to the Supplier for the Paid License in accordance with this clause 9 and the Order Confirmation.
9.2 The Customer 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 Customer provides:
(a) its credit card details to the Supplier, the Customer 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 14.1, on each anniversary of the Effective Date (and in any event prior to any Renewal Period) for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, at least 30 days prior to each anniversary of the commencement of each Renewal Period for the Subscription Fees payable in respect of that next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If the Supplier has not received payment within 30 days after the due date, or prior to the commencement of the applicable Renewal Period, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’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; or
(b) the Supplier may retain the Customer’s data and Projects for a reasonable period of time, in the event that the Customer wishes to commence a Renewal Term, up to a total of three (3) months at which time it shall be irretrievably deleted; and
(c) 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 HSBC Bank (UK) plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment;
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in US dollars;
(b) are, subject to clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added or other applicable sales and other tax, which may be added to the Supplier’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Customer exceeds the amount of managed online storage space specified in the Documentation or if the Customer’s usage exceeds a reasonable amount based on the Supplier’s customer base generally or to the extent that such excessive usage begins to present or risks becoming a commercial burden to the Supplier, or risks negatively affecting and shared network infrastructure used to provide the Services, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier may introduce a reasonable excess data storage fee policy from time to time which shall be deemed to amend this Agreement upon 30 days written notice to the Customer of such policy coming into effect or 30 days after the policy has been made public on the Supplier’s website.
9.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 60 days’ prior notice to the Customer and the details of the Subscription and Order Confirmation shall be deemed to have been amended accordingly.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer 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 licenses in respect of the Services or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
11.1 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.
11.2 Subject to clause 11.4, 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 and clause 11.9.
11.3 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.
11.4 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 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.
11.8 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
11.9 Publicity – the Customer acknowledges and agrees that the Supplier may publish the business name of the Customer on its website (but not any logo or branding material requiring approval pursuant to clause 11.10 below) as a Customer of the Supplier and user of the Services. For the avoidance of any doubt the Customer’s status as the Supplier’s client shall not be confidential information.
11.10 Neither party shall make any use of the other’s intellectual property, materials, logos, brand or other such materials, except to the extent expressly set out in this Agreement or as that party provides express advance approval for in each case.
12.1 The Customer 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 Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this agreement infringes any United States of America or United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer 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.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer 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 Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 13.3(b) states the Customer’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.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, 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 Customer in connection with the Services, or any actions taken by the Supplier or the Software at the Customer’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, including the Software and the Documentation and any related Support Services are provided to the Customer on an “as is” basis.
13.2 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.
13.3 Subject to clause 13.1 and clause 13.2:
(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 12.2), 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.
13.4 The Customer acknowledges and agrees that, as the Customer is only evaluating the Software under a Free Trial, it is reasonable that the Supplier shall have no liability of any kind in any circumstances whatsoever including without limitation negligence (except for death and personal injury caused by the Supplier’s negligence, fraud and other liability it would be illegal to exclude) to the Customer in respect of the Software or the Documentation and the Supplier makes no warranty of any kind in respect of the Software or the Documentation. For the same reasons, all statutory and implied warranties, terms and conditions are excluded to the full extent allowed by law and the Services and Documentation are provided on an “as-is” basis.
13.5 The Customer acknowledges and agrees that the Customer shall have sole responsibility for the protection of all data it submits during any Free Trial and the Supplier shall have no liability to the Customer in any circumstances whatsoever including without limitation negligence for any data loss or corruption caused during a Free Trial.
14. TERM AND TERMINATION
14.1 This agreement and each individual Subscription shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the applicable Initial Subscription Term and, thereafter, this agreement and each Subscription shall be subject to the renewal terms set out in the Order Confirmation. If not stated to the contrary, each Subscription and this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) the applicable Order Confirmation expressly states that the Subscription Term is fixed or will expire upon a certain date or event; or
(b) either party notifies the other party of termination, in writing, at least 30 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
(c) the Subscription is a Free Trial, in which case the Term of that Subscription shall in no event exceed one (1) calendar month, or 31 days, whichever is lesser unless expressly approved in writing in advance by the Supplier and confirmed to the Customer in a revised Order Confirmation.
(d) 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.
14.2 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 14 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so. Repeated minor breaches of this agreement by the Supplier shall not be cumulatively deemed to equate to a material breach pursuant to this clause;
(c) the Customer repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(e) 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;
(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;
(h) the holder of a qualifying floating charge over the assets of that other party 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 14.2(d) to clause 14.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.3 On termination of this agreement for any reason:
(a) all licenses granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation and the Software;
(b) each party shall return and make no further use of any equipment, property, Documentation, Licensed Software 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 Customer Data in its possession in accordance with clause 5.7(c), unless the Supplier receives, no later than thirty days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up or other readily available copy of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer 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 Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data, which shall be supplied in the format it is stored in, which may be encrypted and will not necessarily be usable by the Customer independently of the Software; 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.
14.4 Where the Supplier is entitled to terminate the Agreement, it may instead choose to suspend the Agreement pending a response from the Customer, and the Supplier retains the absolute authority to determine which course of action it takes in each applicable instance as to termination or suspension.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer 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, flood, storm or default of suppliers or sub-contractors, provided that the Customer 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.
No variation of this agreement shall be effective unless it is in writing and expressly references this Agreement.
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.
19. 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.
20.1 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.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 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.
21. ENTIRE AGREEMENT
21.1 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.
21.2 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.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22.1 The Customer 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.
22.2 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.
23.1 The Customer acknowledges that the Supplier’s services are provided via the internet and may be accessible in any jurisdiction in the world. The Supplier makes no warranty as to compliance with any local laws and the Customer should not place legal reliance upon the Services or Documentation complying with any such local laws which are specific to the Customer’s business and not to that of the Supplier.
23.2 The Customer waives any and all right to jury trial or any similar determination of disputes hereunder, and in the event that the Customer may be entitled to punitive, exemplary or otherwise penal damages of any nature, the Customer any such right as against the Supplier and its representatives.
23.3 The Customer agrees not to export the Software or Documentation in any manner that would contravene the US Department of Commerce’s Bureau of Industry and Security Export Administration Regulations Export Control laws or any similar technology sanctions which may prevent the transmission or exportation of Software provided by the Supplier pursuant to this agreement.
23.4 The Customer acknowledges that the Software and the Documentation are not designed to support critical infrastructure or networks such as those supporting utilities infrastructure including but not limited to nuclear power, or any critical health support or similar measures and the Customer agrees not to make any such use of the Software or Documentation during the Term or thereafter.
24. 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).
25. 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.
26.1 Any notice required to be given under this agreement to the Supplier shall be in writing and shall be delivered by email to email@example.com, or by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other email address as may have been notified by that party for such purposes or as used to register a user account.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A notice delivered by email shall deemed to have been received by the intended recipient 48 hours after it was sent. A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
26.3 The Supplier may post service messages and notices within the application or by publication on its website and the notice is deemed to be received when posted.
27. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).