& Conditions

DYMENSiON SAAS SUBSCRIPTION AGREEMENT (BUSINESS CUSTOMERS)

Kings Security Systems Limited, a company registered in England and Wakes under company number 01008045 whose registered office is at 4 St Dunstans Technology Park, Ripley Street, Bradford, West Yorkshire, BD4 7HH (“Company”); and
Customer Name, a company registered in England and Wakes under company number [INSERT NUMBER] whose registered office is at [INSERT REGISTERED ADDRESS] (“Customer”).

TERMS & CONDITIONS

1. Definitions

1.1. The following terms used in this Agreement have the following meanings:

Agreement the Term Sheet and these Terms and Conditions.

App Licence the licence to access the Subscription Services via the One Touch App and the mobile device types specified in the Term Sheet.

Available in respect of the Subscription Services means that it is running correctly in accordance with the Agreement and can be properly accessed and used via the Internet by all end-users.

Bespoke Development Services the services described as such in the Term Sheet and clause 5.3 of the Terms and Conditions.

Bespoke Development Service Charges the charges set out in or calculated by reference to the rates set out in the Term Sheet for the Bespoke Development Services.

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

Cancellation Charge the charges set out in the Term Sheet in the event that the Customer cancels again any of the Training Services.

Charges the Subscription Charges, the Bespoke Development Service Charges and/or the Training Service Charges (as the case may be).

Company Kings Security Systems Limited a company registered in England and Wales with company registration number 01008045 and its registered offices at 4 St Dunstans Technology Park, Bradford, West Yorkshire BD4 7HH trading as “Kings Secure Technologies”.

Confidential Information information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.

Contract Year each twelve (12)month period during the Subscription Term.

Customer any organisation or person who enters into this Agreement as set out in the Term Sheet.

Customer Data the data inputted by the Customer in connection with the use of the Subscription Services.

Data Protection Legislation all applicable data protection and privacy legislation in force from time to time 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. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall all have the meanings as defined in the Data Protection Legislation.

Documentation the document made available to the Customer by the Company online via such web address notified by the Company to the Customer from time to time which sets out a description of the Subscription Services and the user instructions for the Subscription Services.

Effective Date the date of this Agreement.

Force Majeure Event any event affecting the performance by the Company of its obligations under this Agreement arising from or attributed to acts, events, omissions or accidents which are beyond the reasonable control of the Company including any abnormal inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, the public internet, war, military operations, riot, crowd disorder, vandalism, arson or criminal damage to the installed Equipment, terrorist action, civil commotion, refusal of the police, fire or other authorities to accept notification of the receipt of any alarm signal and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any relevant government, court or authority and, in the case of the Customer, any state of the Customer’s premises or location where any of the Services are provided rendering such sites dangerous or unsafe for the provision of any of the Services in the reasonable opinion of the Company.

Group Company means any company that is affiliated to or which is a subsidiary of the Company who is listed in the Term Sheet as being a corporate user of the Subscription Services.

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 the Customer (but not the Company) 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 Period the Initial Period of this Agreement as set out in the Term Sheet.

Named Users any individuals who are authorised to use the Subscription Services via the Platform Licence and/or the App Licence.

On-boarding Service the services described as such in the Term Sheet.

One Touch App the smartphone application (Andriod and Apple iOS0 which is known as the “One Touch App” and which is described as such in the Term Sheet and the Documentation (as may be updated by the Company from time to time pursuant to this Agreement).

Platform the “DYMENSiON” web based platform which is described as such in the Term Sheet and the Documentation (as may be updated by the Company from time to time pursuant to this Agreement).

Platform Licence the licence to access the Subscription Services via the Platform as such licence is scoped determined by the parameters set out in the Term Sheet.

Platform Logins those maximum number of employees, agents and independent contractors of the Customer or ant Group Company who are authorised to use the Subscription Services from time to time, the current number being as stated in the Term Sheet.

Renewal Period the period specified as such in the Term Sheet.

Services the Subscription Services, the On-boarding Services, the Support and Maintenance Services, the Bespoke Development Services and the Training Services.

Sites the sites at which any of the Subscription Services are to be provided as set out in the Term Sheet.

Software the online software applications provided by the Company as part of the Subscription Services.

Subscription Commencement Date the date on which the Company shall start to make the Subscription Services available to the Customer, as such date is specified in the Term Sheet.

Subscription Fees the subscription fees payable by the Customer to the Company for the Subscription Services, as set out in the Term Sheet.

Subscription Services the subscription services provided by the Company to the Customer under this Agreement via the Platform and OneTouch App as more particularly described in the Term Sheet (including in relation to the authorised levels of usage) and the Documentation.

Subscription Services Commencement Date means the date set out as such in the Term Sheet.

Subscription Term means the Initial Period together with any subsequent Renewal Periods.

Support Services means the services described as such in the Term Sheet and clause 5.3 of the Terms and Conditions, which services are to be provided by the Company to the Customer as part of the Subscription Service.

Support Service Hours 8am to 5pm weekdays, 9am to 4pm (UK time) weekends and holidays.

Support Services Policy the Company’s policy for providing support in relation to the Support Services as made available at such website address as may be notified to the Customer from time to time.

Term Sheet the Company document which the Customer has signed and which contains the Customer’s details and details of what is being provided to the Customer together with any other necessary additional information.

Training Services means the services described as such in the Term Sheet.

Training Service Charges means the charges calculated by reference to the rates set out in the Term Sheet for the Training Services.

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.

Background

(A) The Company has developed the Platform and the App.
(B) The Company makes the Platform and the App available to subscribers via the internet on a pay-per-use basis by way of the Subscription Services.
(C) The Customer wishes to use the Subscription Services in its business operations.
(D) The Company has agreed to provide and the Customer has agreed to take and pay for the Subscription Services subject to the terms and conditions of this Agreement.

1 Interpretation
1.1 Reference to a clause is to a clause in this Agreement.

1.2 Clause headings are inserted for convenience only and shall not affect the construction or interpretation of these Terms and Conditions.

1.3 Where context requires, the singular shall include the plural and vice versa and any gender includes the other gender.

1.4 Any reference to any statute or statutory provision will (unless the context otherwise requires) be constructed as a reference to that statutory provision as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time. 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.

1.5 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.7 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.8 References to clauses are to the clauses of this Agreement.

2 Duration and Renewal
2.1 This Agreement shall commence on the Effective Date.

2.2 Unless otherwise terminated as provided in clause 15.4, the Subscription Services shall continue for the Initial Period. In addition, the Bespoke Development Services and the Training Services shall be provided on the dates and/or for the periods specified in the Term Sheet. Thereafter, the Subscription Services and this Agreement shall be automatically renewed (subject to the provisions of clauses 2.4 and 6.9) 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 Period or any Renewal Period, in which case this Agreement shall terminate in its entirety upon the expiry of the Initial Period or the applicable Renewal Period (as the case may be); or
(b) otherwise terminated in accordance with the provisions of this Agreement.

2.3 The Customer may elect to reduce the volume of the Subscription Service by up to ten per cent (10%) for the second Contract Year and, then again, by a further ten per cent (10%) for each subsequent Contract Year provided always that the Customer provides the Company with at least thirty (30) days written notice to the Company before the expiry of the applicable Contract Year. In such circumstances, the Company shall also reduce the Subscription Service Charge for the applicable Contract Year pro rata by up to ten percent (10%).

2.4 If the Customer wishes to renew this Agreement for a Renewal Period, the Customer may also elect to vary the volume of the Subscription Service by any amount for the subsequent Renewal Period provided always that the Customer provides written notice of such intention to the Company at least ninety (90) days prior to the expiry of the then current Subscription Period. In the event that the Customer exercises such right, the Company shall, within thirty (30) days of receipt of the Customer’s notice, submit a proposal to the Customer as regards the Subscription Service Charges that will be applied by the Company for such Renewal Period. In the event that the Customer does not raise any objections to such pricing proposal within thirty (30) days of the expiry of the then current Subscription Period, the proposed pricing proposal shall be deemed accepted by the Customer. If the Customer does raise any concerns before such time, the Company and the Customer shall discuss such concerns. Then, if the Company’s pricing proposal for any Renewal Period has not been agreed or is not so deemed to be agreed within thirty (30) days of the expiry of the then current Subscription Period, either party may terminate this Agreement with effect from the expiry of the then current Subscription Period (as the case may be) by providing the other party with at least fourteen (14) days’ notice.

3 Subscription Services
3.1 Subject to the Customer paying for the Subscription Services in accordance with clause 4.3 and clause 6.1 as the case may be and to the Customer complying with the other terms and conditions of this Agreement, the Company hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to use the Subscription Services and the Documentation by way of the Platform Licence and the App Licence during the Subscription Term solely for the Customer’s internal business operations.

3.2 The Customer undertakes that:
(a) it shall only use the Subscription Services within the following parameters:
(i) within the countries listed in the Term Sheet;
(ii) by the Group Companies listed in the Term Sheet;
(iii) at the Sites listed in the Term Sheet;
(iv) by any Named Users who have been registered to use the Subscription Services;
(v) within usage volumes set out in the Term Sheet, as such volumes may be adjusted pursuant to clause 2.2, clause 2.3 and/or clause 4;

(b) to the extent that any of the Subscription Services are to be accessed by any Named Users, the Customer will ensure that:
(i) such Subscription Services shall only be used by such individual unless such access has been reassigned in its entirety to another Named User. For such purposes, the Customer may change the identity of any such Named User up to [x] times during each Contract Year;
(ii) it shall maintain a written, up to date list of the individuals who are authorised to use the Subscription Services;
(iii) it shall provide the Company with an up to date list of all individuals who are using the Subscription Services on behalf of the Customer within 5 Business Days of the Company’s written request at any time or times;
(iv) each individual who uses the Subscription Services shall be required to register a secure password with the Company which password must be changed no less frequently than every 3 months and kept confidential;

(c) it shall permit the Company or the Company’s designated auditor to audit the Subscription Services in order to establish the name and password of each Named User and the Company’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at the Company’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;

(d) if any of the audits referred to in clause (c) reveal that any password has been provided to any individual who is not a Named User, then without prejudice to the Company’s other rights, the Customer shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual; and

(e) if any of the audits referred to in clause (c) reveal that the Customer has underpaid Subscription Fees to the Company, then without prejudice to the Company’s other rights, the Customer shall pay to the Company an amount equal to such underpayment as calculated in accordance with the prices set out in the Term Sheet within 10 Business Days of the date of the relevant audit.

3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription 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 Company reserves the right, without liability or prejudice to its other rights to the Customer, to disable or suspend the Customer’s access to any material that breaches the provisions of this clause.

3.4 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) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 19.7, 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 for any Group Company, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.3; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into the Company’s network and information systems.

3.5 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 Company.

4 Additional Subscription Services
4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional Subscription Services for additional Group Companies, Sites and/or numbers of Named Users to those which are set out in the Term Sheet.

4.2 If the Customer wishes to purchase additional Subscription Services, the Customer shall notify the Company in writing. The Company shall evaluate such request for additional Subscription Services and respond to the Customer with approval or rejection of the request. Where the Company approves the request, the Company shall activate the additional Subscription Services within seven (7) days of its approval of the Customer’s request.

4.3 If the Company approves the Customer’s request to purchase additional Subscription Services, the Customer shall, within 30 days of the date of the Company’s invoice, pay to the Company the relevant fees for such additional Subscription Services as set out in the Term Sheet and, if such additional Subscription Services are purchased by the Customer part way through the Initial Period or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Company for the remainder of the Initial Period or then current Renewal Period (as applicable) subject to the Company’s right to disable the Customer’s account as set out in clause 6.6.

5 Services
5.1 The Company shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

5.2 The Company shall use commercially reasonable endeavours to:
(a) make the Subscription Services available 24 hours a day, seven days a week; and
(b) ensure that the Subscription Services shall be Available for 99.95% of the time;
except for:
(c) planned maintenance carried out during a pre-notified maintenance window, in respect of which the Company shall provide to the Customer seven (7) days’ notice; and
(d) unscheduled emergency maintenance which needs to be performed outside Support Service Hours, provided that the Company has used reasonable endeavours to give the Customer at least 6 hours’ notice in advance.

5.3 The Company will, as part of the Subscription Services and at no additional cost to the Customer, provide the Customer with the Support Services during the Support Service Hours in accordance with the Support Services Policy in effect at the time that the Subscription Services are provided. The Company may amend the Support Services Policy in its sole and absolute discretion from time to time.

5.4 The Customer may also elect to purchase any Bespoke Development Services and/or Training Services as are described in the Term Sheet.

5.5 If the Company agrees to provide any Bespoke Development Services, the scope of the Customer’s backlog of items for the Bespoke Development Services shall be as set out in the Term Sheet. The Customer may determine the priority of the items to be developed pursuant to the Bespoke Development Services and, once determined, the Company and the Customer shall work together to refine the scope, timelines and cost of the applicable Software Development Services and to develop the output of such item as a “sprint”. If any items can not be completed within the allocated budget for each “sprint”, the remaining items shall be added back into the “backlog” of items for further development. In so doing, the parties shall follow the industry accepted principles of the “scrum” methodology.

5.6 If the Company agrees to provide any Training Services, the Company shall provide the Training Services on the days set out in the Term Sheet or as otherwise agreed. If the Customer cancels any Training Services on less than fifteen (15) days’ notice, the Company may levy cancellation Charges at the rates set out the Term Sheet.

6 Payment Of Charges
6.1 The Customer shall pay the Subscription Charges to the Company for the Subscription Services in accordance with this clause 6 and the Term Sheet.

6.2 In addition, if the Customer has elected to purchase any Bespoke Development Services and/or Training Services, the Customer shall pay the applicable Bespoke Development Service Charges and/or Training Service Charges to the Company on the basis described in the Term Sheet.

6.3 The Company’s account details for the payment of all Charges shall be as provided by the Company to the Customer from time to time.

6.4 In addition to the Charges, the Customer shall pay all value added tax and all duties which may be payable in connection with any such Charges.

6.5 The Customer shall pay all Charges on the date or within the time period set out in the Term Sheet or, if no such date is set, within thirty (30) days of the date of the Company’s invoice.

6.6 If the Company has not received any payment by the due date, and without prejudice to any other rights and remedies of the Company:
(a) the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company 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 4% over the then current base lending rate of the Company’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

6.7 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause (b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Company’s invoice(s) at the appropriate rate.

6.8 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Company shall charge the Customer, and the Customer shall pay, the Company’s then current excess data storage fees. The Company’s excess data storage fees current as at the Effective Date are set out in the Term Sheet.

6.9 The Company shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Subscription Services purchased pursuant to clause 4.3 and the support fees payable pursuant to clause 5.2(d) at the start of each Renewal Period upon 90 days’ prior notice to the Customer. The Customer shall have the option to discuss such increase with the Company where the Company has provided such notice to the Customer. If the Customer does not object to such increase, the new fees shall be deemed to apply from the start of the relevant Renewal Period and the Term Sheet shall be deemed to have been amended accordingly.

7 Customer Data
7.1 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.

7.2 The Company shall follow its archiving procedures for Customer Data as set out in its own policies from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Company shall be for the Company 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 Company in accordance with the archiving procedure described in its relevant policy. The Company 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 Company to perform any of the Services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 7.9).

7.3 The Company shall, in providing each of the Services, comply with its policies relating to the privacy and security of the Customer Data from time to time.

7.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

7.5 The parties acknowledge that:
(a) if the Company processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the controller and the Company is the processor for the purposes of the Data Protection Legislation.
(b) the personal data may be transferred or stored outside the EEA or the country where the Customer or the Group Company is located in order to carry out each of the Services and the Company’s other obligations under this Agreement.

7.6 Without prejudice to the generality of clause 7.4, 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 Company for the duration and purposes of this Agreement so that the Company may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.

7.7 Without prejudice to the generality of clause 7.4, the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process personal data (Applicable Laws). Where the Company is relying on Applicable Laws as the basis for processing personal data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company 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 Company has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Company 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 Company 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 7 and immediately inform the Company if, in the opinion of the Company, an instruction infringes the Data Protection Legislation.

7.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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).

7.9 The Customer consents to the Company appointing third party cloud platform providers as a third-party processor of personal data under this Agreement. The Company confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case which the Company confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.

7.10 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 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).

8 Third Party Providers
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Company makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Company. The Company recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

9 Company’s Obligations
9.1 The Company undertakes that:
(a) the Subscription Services will be performed substantially in accordance with the Documentation and with reasonable skill and care;
(b) the Bespoke Development Services and the Training Services will be performed with reasonable skill and care.

9.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company’s instructions, or modification or alteration of the Services by any party other than the Company or the Company’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Company 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 9.1.

9.3 The Company:
(a) does not warrant that:
(i) the Customer’s use of each of the Services will be uninterrupted or error-free;
(ii) that any of the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(iii) the Software or any of the Services will be free from Vulnerabilities; or
(iv) the Software, Documentation or any of the 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 the Customer acknowledges that each of the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.4 This Agreement shall not prevent the Company 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.

9.5 The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

10 Customer’s Obligations
10.1 The Customer shall:
(a) provide the Company 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 Company;
in order to provide each of 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 Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Group Companies and Named Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any breach of this Agreement by any Group Company or Named User;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, 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 Company 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 Company’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.

11 Proprietary Rights
11.1 The Customer acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in each of the Services (including ant Bespoke Development 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 licences in respect of each of the Services or the Documentation.

11.2 The Company 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.

12 Confidentiality And Compliance With Policies
12.1 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.

12.2 Subject to clause 12.4, 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.

12.3 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.

12.4 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 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Company’s Confidential Information.

12.6 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 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.

12.8 The above provisions of this clause 12 shall survive termination of this Agreement, however arising.

12.9 In performing its obligations under this Agreement the Customer shall comply with the policies of the Company as notified to the Customer from time to time.

13 IP Indemnity
13.1 The Company 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 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 Company is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
(c) the Company is given sole authority to defend or settle the claim.

13.2 In the defence or settlement of any claim, the Company 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 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

13.3 In no event shall the Company, 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 Company; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Company; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Company or any appropriate authority.

13.4 The foregoing and clause 15.3(b)] state the Customer’s sole and exclusive rights and remedies, and the Company’s (including the Company’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14 Customer Indemnity
14.1 The Customer shall defend, indemnify and hold harmless the Company 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; and
(b) the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense.

15 Limitation Of Liability
15.1 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 Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services, or any actions taken by the Company 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 and the Documentation are provided to the Customer on an “as is” basis.

15.2 Nothing in this Agreement excludes the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for fraud or fraudulent misrepresentation.

15.3 Subject to clause 15.1 and clause 15.2:
(a) the Company 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 Company’s total aggregate liability in contract (including in respect of the indemnity at clause 13.1), 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:
(i) in relation to any claim relating to the Subscription Services, the total Subscription Charges paid for the Subscription Services within the Sites affected within a particular country during the 12 months immediately preceding the date on which the claim arose; and/or
(ii) in relation to any claim relating to any element of the Bespoke Development Services, the Bespoke Development Service Charges which relate to the element of the Bespoke Development Service which is the subject of the claim during the 12 months immediately preceding the date on which the claim arose; and
(iii) in relation to any claim relating to any element of the Training Services, the Training Service Charges which relates to the element of the Training Services (such as a specific course) which is the subject of the claim during the 12 month period immediately preceding the date on which the claim arose.

15.4 The Customer accepts that the limitation period for bringing any claims against the Company under this Agreement or otherwise shall be set at twelve (12) months from the date on which the cause of the action arose.

16 Termination
16.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement (either in whole or on a per site basis) 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party 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 (d) to clause (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;

16.2 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Company may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause (c), unless the Company receives, no later than ten 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 of the Customer Data. The Company 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 Company in returning or disposing of Customer 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.

17 Suspension
17.1 The Company reserves the right, without liability or prejudice to its other rights to the Customer (either in whole or on a per site basis) to suspend and/or disable the Customer’s access to each of the Services or any particular materials in the event the Company reasonably considers that there has been a breach of the provisions of this Agreement and/or to remove any material that breaches the provisions of this Agreement without prior notice to the Customer. The Customer shall, and shall procure that each Group Company and each Named Users shall, comply with the Company’s reasonable requests in relation to the Customer’s access and use of each of the Services.

17.2 The Company reserves the right (either in whole or on a per site basis) to suspend and/or disable the Customer’s access to the Services without prior notice to the Customer where there is a problem with the Services.

17.3 If the Customer fails to make any payment in accordance with this Agreement, the Company may immediately suspend provision of the Services (either in whole or on a per site basis) and the corresponding licences to use each of the Services until payment is made in full (together with any applicable interest on late payment and any reasonable costs incurred by the Company as a result of the suspension), and any reasonable costs thereby incurred by the Company shall be paid by the Customer.

18 Force Majeure
18.1 If by reason of a Force Majeure Event, the Company is or anticipates that it will be prevented or hindered from fulfilling the substance of its obligations under this Agreement, then the Company shall notify the Customer immediately and the Customer shall be entitled if such Force Majeure Event subsists for a period of one (1) Month, to cancel or suspend this Agreement by giving notice in writing to the Company.

18.2 In the event of cancellation or suspension pursuant to clause 18.1, the Company shall be under no liability to the Customer or its sub-contractors for any loss which they may sustain in consequence of any such cancellation or suspension. The Customer shall in the event of such cancellation be under no liability to the Company in respect of its future obligations under this Agreement and in the event of suspension of this Agreement shall be relieved of such obligations for the period of such suspension including the payment of any part of the Subscription Fees due during the period of suspension (but without prejudice to any rights of either party against the other in respect of any claim accrued to the date of the commencement of such cancellation or suspension).

18.3 In the event of cancellation of this Agreement pursuant to clause 18.1, the Company shall repay to the Customer any part of the Subscription Fees paid in respect of any period or periods affected by such cancellation or suspension apportioned on a basis which shall be fairly and reasonably attributable to the relevant cancellation or suspension.

19 General
19.1 Conflict. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Term Sheet, the provisions in the Term Sheet shall prevail.

19.2 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19.3 Waiver. 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.

19.4 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.

19.5 Severance. 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. If any provision or part-provision of this Agreement is deemed deleted under clause 19.5 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.

19.6 Entire Agreement. 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. 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.

19.7 Assignment. The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Company 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.

19.8 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).

19.9 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.

19.10 Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered 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 address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as notified from time to time. 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 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. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

19.11 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.

19.12 Jurisdiction. 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).