TERMS AND CONDITIONS

AGREED TERMS

1. Interpretation

1.1           The definitions and rules of interpretation in this clause apply in these Terms and Condition.

"Access ID" means the identification, such as the signing on credentials, assigned to an Authorised User so that they can access and use the Services;

"Administrator" shall have the meaning set out in clause 5.25.2;

"Agreement" has the meaning set out in the Licence Agreement;

"Authorised Users" means those employees, agents and independent contractors of the Customer and its Group Members, who are authorised by the Customer to use the Services;

"Business Day" means a day other than a Saturday, Sunday or public holiday in England and Scotland when banks in London and Scotland are open for business;

"Confidential Information" means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other's, or any of its Group Members', business, operations, systems, processes, Source Code (if applicable) products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:

(a)            is available to the public other than because of any breach of this Agreement;

(b)            is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or

(c)            is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;

Customer Data is the Confidential Information of the Customer and details of the Services and the results of any performance tests of the Services, constitute the Supplier's Confidential Information;

"controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures" as defined in the Data Protection Legislation;

"Customer Data" means the data inputted by the Customer, Group Member, 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 and any data generated by, or derived from the Customer's use of the Services, whether hosted or stored within the Services or elsewhere;

"Customer Materials" means any material provided or made available by or on behalf of the Customer or Group Member to the Supplier for the purposes of incorporation into the Service for the Customer or other permitted use by the Supplier in connection with any  Services, but excluding Customer Data;

"Data Protection Legislation" means the elating 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);

"Effective Date" means the date set out on the Licence Agreement;

"Fees per Authorised User" means the monthly fees for each Authorised User's access to use the Product and Services as set out on the Licence Agreement and as may be updated in accordance with the terms of this Agreement;

"Group Member" means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where "control" means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise;

"Indemnified Claim" shall have the meaning set out in clause 11.3(a);

"Initial Term" means the period set out in Licence Agreement;

"Insolvency Event" means, in relation to a person (which includes an individual and a legal person, such as a limited company), any of the following events:

(a)            a meeting of creditors of that person being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that person;

(b)            a charge holder, receiver, administrative receiver or other similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that person;

(c)            that person ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986 (except that, for the purposes of this Agreement, the reference to £750 in section 123(1) of that Act shall be construed as a reference to £10,000);

(d)            that person or its directors or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator;

(e)            a petition being advertised or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that person; or the happening in relation to that person of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;

"Intellectual Property Rights" means all patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Normal Business Hours" means 8.00 am to 6.00 pm local UK time, each Business Day;

"Licence Agreement" means the licence agreement entered into by the parties and into which these Terms and Conditions are incorporated;

"Renewal Period" means the period described in the Licence Period;

"Service Fees" means the total fees payable for the provision of access to the Product and Services and which shall be calculated as the aggregate of the Fees per Authorised User per month;

"Services" means the Services provided by the Supplier to the Customer under this Agreement as more particularly described at[insert link to the description of the services];

"Software" means the online software applications provided by the Supplier as part of the Services;

"Standard Contractual Clauses" means the standard contractual clauses set out in the European Commission's Decision 2010/87/EU of 5 February 2010 for the transfer of Personal Data to processors established in third countries (as may be amended by agreement of the parties for compliance with applicable Data Protection Legislation requirements);

"Sub-Processor" means a person or entity subcontracted by the Supplier to process Personal Data in accordance with the Supplier's obligations under or in connection with this Agreement.

"Term" means the Initial Term together with any subsequent Renewal Periods;

"Third Party Applications" means third party Web-based or software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that, at the request of the Customer, interoperate with the Service or receive Customer Data for the benefit of the Customer.

"UK Data Protection Legislation" means the 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 or replaced from time to time; and

"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.

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).

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 and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.8           A reference to writing or written includes e-mail but not faxes.

1.9           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. Provision of Service

2.1           Following the Effective Date, the Supplier shall provide access to the Product(s) and Services.  The Supplier shall:

(a)            procure that the Service is enabled for the Customer and its Authorised Users in live production use; and

(b)            shall, for the remainder of the Term procure the hosting of the Services.

2.2           It is the Customer's responsibility to ensure it has equipment (of appropriate specification and compatible with the Service) and internet connection to enable the Customer to connect to the Service. The Customer acknowledges that it is responsible for all charges for internet access (including mobile data usage) charged by its internet supplier.

2.3           The Customer shall:

(a)            provide the Supplier with:

(i)              necessary co-operation in relation to this Agreement; and

(ii)            necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Materials and 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.

3. Authorised Users

3.1           The Supplier hereby grants to the Customer and its Group Members a non-exclusive, non-transferable right, with the right to grant sub-licences, to permit the Authorised Users to use the Services during the Term solely for the Customer's internal business operations.  Except as expressly set out in this Agreement, all rights in and to the Service (excluding Customer Data and Customer Materials) and Software are reserved to the Supplier.

3.2           The Customer shall and shall ensure that each Group Member shall comply with, and shall ensure that each Authorised User consents to and complies with, any terms of use or service (including any acceptable use policy) and privacy and/or cookies policy made available by the Supplier to the Customer.

3.3           In relation to the Authorised Users, the Customer undertakes that:

(a)            it will not allow or suffer any Access ID for an Authorised User 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;

(b)            it shall, no more frequently than once per year, permit the Supplier or the Supplier's designated third party auditor to audit the Services solely, to verify that the number of Authorised Users who have used the Services does not exceed the number paid for during the year;

(c)            if the audits referred to in clause 3.3(b) reveal that the Customer has underpaid Service 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.

3.4           The Customer shall not knowingly:

(a)            distribute or transmit to the Supplier, via the Services, any Viruses;

(b)            store, access, publish, disseminate, distribute or transmit via the Services any material which: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi)is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, on no less than five (5) days' prior written notice to the Customer, such notice specifying the breach of this clause and requiring it to be remedied within the ten (10) day period, to disable the Customer's access to the Services for the duration of time that the breach remains unremedied.  Such suspension shall not be a breach of this Agreement.

3.5           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 (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;

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

(c)            use the Services to provide Services to third parties;

(d)            subject to clause 3.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or

(e)            attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 33.

3.6           The Customer further acknowledges and agrees that the Supplier or its appointed third party representatives (subject to entering into a confidentiality agreement) have the right, on reasonable prior notice, to inspect and audit its facilities and operations once every year during the Term, solely for the purposes of verifying its compliance with the terms of this Agreement and the Customer agrees to provide reasonable access, during Normal Business Hours and subject to its reasonable security procedures, to its premises, systems and personnel and to provide reasonable co-operation (including the provision of requested information), subject the Supplier paying the Customer's reasonable costs, for the purposes of such inspections and audits.

4. Third Party Applications

4.1           The Service may enable the Customer to request that the Service is linked to Third Party Applications.  The parties will review and consider each such request together and shall establish whether it is technically possible to make such link.  Such link shall only be permitted where it is agreed by both parties.  By linking a Third Party Application with the Service, the Customer:

(a)            authorises the Supplier to send Customer Data to the Third Party Application via the Service; and

(b)            grants the Supplier permission to allow the provider of that Third Party Application to access Customer Data via the Service,

in each case solely as required for the interoperation of that Third Party Application with the Service.

4.2           The Supplier is not responsible for any usage, transmission, disclosure, loss, modification or deletion of Customer Data or any other content sent to, provided by or accessed by a Third Party Application that Customer links to the Service, except where such usage, transmission, disclosure, loss, modification or deletion occurs as a result of the Supplier's negligence.

4.3           The Customer is solely responsible for obtaining and securing from the Third Party Application provider all rights and permissions necessary for Customer to link such Third Party Application to the Service, and Supplier shall have no liability in connection with the same.

4.4           Customer's access to and use of any Third Party Application (including the linking of the Third Party Application to the Service) is subject to such Third Party Application provider's terms and conditions that govern the access and use of the Third Party Application, or any separate agreement or transaction that the Customer enters into with the Third Party Application provider, and the Supplier shall have no liability in connection with the same.

5. Administrator and Authorised Users

5.1           The Customer shall designate one contact and one alternate as the responsible party for communication with the Supplier during the Term ("Administrator").  The Administrator shall have the authority to bind the Customer, except that another duly authorised representative of the Customer may change its Administrator by giving written notice to the Supplier in accordance with clause 1919.

5.2           The Administrator may establish accounts for Authorised Users. The Customer is solely responsible for determining the skill, competence, character and other attributes of all Authorised Users.

6. Customer Data, Data Protection

6.1           The Customer shall own all right, title and interest in and to all the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

6.2           With respect to the processing of any personal data, the parties agree that the provisions of schedule 1 shall apply.

7. Supplier's obligations

7.1           The Supplier warrants that:

(a)            it has the right to enter into this Agreement and it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement;

(b)            the Service shall, under normal operating conditions, conform to the functionality described in the definition of Services;

(c)            the Services will be performed with reasonable skill and care.

7.2           If any of the warranties in clause 7.1 is breached, the Customer must notify the Supplier as soon as reasonably possible. Where the breach is capable of remedy the Customer must give the Supplier 10 Business Days from the date of notification to remedy the breach, including (in the Supplier's discretion) by making available a corrected version of the Service or a reasonable way to work around the problem that is not detrimental to the Customer and/or by re-performing any relevant Services. This will be done without any additional charge to the Customer.

7.3           The Supplier does not control the content posted to or via the Service and, in particular, does not control the Customer Data and, as such, the Supplier does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.

7.4           The Supplier:

(a)            does not warrant that the Customer's use of the Services will be uninterrupted or error-free; and

(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 the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.5           Except as expressly set out in this Agreement and subject only to clause 12.2, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Services or to anything supplied or provided by the Supplier under this Agreement.

8. Fees and payment

8.1           From the Effective Date the Customer shall pay the Service Fees.  Supplier will, for the previous month, determine the number of Authorised Users for that month and then calculate the Services Fees payable for that month. The Supplier will invoice such Service Fees within the first 10 Business Days of the following month.  The invoice will detail the number of Authorised Users for the applicable month.

8.2           Unless otherwise expressly provided in this Agreement, all amounts referred to in this Agreement are exclusive of value added tax (VAT) or other applicable sales tax which, where chargeable by the Supplier, shall be payable by the Customer at the rate and in the manner prescribed by law.

8.3           All undisputed invoices issued pursuant to this Agreement shall be payable in full without deduction or set off within 30 days of the date of the invoice (due date).  If the Supplier has not received payment by the due date, and as the Supplier's sole remedy, 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 Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.4           The Supplier shall be entitled to increase the Service Fees at the start of any Renewal Period.  The Supplier shall give the Customer not less than 60 days, prior to the beginning of any Renewal Period, notice in writing of any increase in the Service Fees.

9. Proprietary rights

9.1           The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software, Services. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Services, Software.

9.2           The Supplier confirms that it has all the rights in relation to the Services, Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9.3           The Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data and Customer Materials. The Customer grants the Supplier, free of charge, a royalty-free, worldwide, non-exclusive, non-transferable licence to use the Customer Data and Customer Materials only to such extent as is necessary to enable the Supplier to provide the Services and to perform its obligations under this Agreement. The Customer warrants that the Customer owns the Customer Data and Customer Materials and/or are otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.

10. Confidentiality

10.1        Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.

10.2        Subject to clause 10.4, 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.

10.3        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.

10.4        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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5        The above provisions of this clause 1010 shall survive termination of this Agreement, however arising.

11. Indemnity

11.1        The Supplier shall indemnify the Customer and its Group Members against all damages and legal costs finally awarded against the Customer and its Group Members by a court of competent jurisdiction and/or amounts paid by the Customer further to a final settlement approved by the Supplier, together with associated legal fees reasonably incurred by the Customer and its Group Members, as a result of any claim by a third party that the access and use, in accordance with this Agreement, by the Customer of the Service infringes the Intellectual Property Rights of any third party.

11.2        If the Customer's and/or its Group Members access or use, in accordance with the terms of this Agreement, of the Services is, or in the Supplier's reasonable opinion is likely to become, enjoined as a result of a claim for which the Supplier is obliged to indemnify the Customer further to clause 11.1, then the Supplier shall, at its sole option, and at its own cost and expense, make all reasonable efforts, as soon as reasonably possible to:

(a)            procure for the Customer the continuing right to access and use the Service, in accordance with this Agreement, without infringement; or

(b)            replace or modify the Service with software and/or services of substantially equivalent specification so as to avoid the infringement.

11.3        The indemnity in clause 11.1 shall be conditional upon:

(a)            the Customer and/or Group Member promptly notifying the Supplier in writing of any claim in respect of which the Supplier is obliged under this Agreement to indemnify and of which it has notice (an "Indemnified Claim");

(b)            the Customer and/or Group Member not admitting any liability or agreeing to any settlement or compromise of an Indemnified Claim without the prior written consent of the Supplier;

(c)            the Suppler being, at its cost and expense, entitled to assume exclusive conduct of the Indemnified Claim (which shall include the right to conduct any proceedings or action in relation to, negotiate the settlement of, and to conduct all discussions and dispute resolution efforts in connection with the Indemnified Claim, provided that no settlement of a claim which would involve any admission of fault or liability on the Customer's and/or Group Member part shall be entered into without its prior written consent); and

(d)            the Customer and/or Group Member, at the Supplier's request, cost and expense, giving the Supplier reasonable assistance in connection with the conduct of the Indemnified Claim.

11.4        In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer and/or Group Member to the extent that the alleged infringement is based on:

(a)            a modification of the Services by anyone other than the Supplier or its agents, subcontractors or partners or with the Supplier's consent or approval; or

(b)            the Customer's and any Group Member use of the Services otherwise than in accordance with this Agreement; or

(c)            the Customer's and any Group Member use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

11.5        The Customer and each Group Member shall indemnify the Supplier against all loss or damage that the Supplier incurs or suffers however arising as a result of or in connection with:

(a)            the Supplier's receipt, possession and/or use, in accordance with this Agreement, of any Customer Data and/or Customer Materials; and/or

(b)            any claim by a third party as a result of the Customer's or Group Member's misuse of the Service.

11.6        The indemnity in clause 11.5 shall be conditional upon:

(a)            the Supplier promptly notifying the Customer in writing of any Indemnified Claim;

(b)            the Supplier not admitting any liability or agreeing to any settlement or compromise of an Indemnified Claim without the prior written consent of the Customer;

(c)            the Customer being, at its cost and expense, entitled to assume exclusive conduct of the Indemnified Claim (which shall include the right to conduct any proceedings or action in relation to, negotiate the settlement of, and to conduct all discussions and dispute resolution efforts in connection with the Indemnified Claim, provided that no settlement of a claim which would involve any admission of fault or liability on the Supplier's part shall be entered into without its prior written consent); and

(d)            the Supplier, at the Customer's request, cost and expense, giving the Customer all reasonable assistance in connection with the conduct of the Indemnified Claim.

12. Limitation of liability

12.1        Except as expressly and specifically provided in this Agreement, the Customer or Group Member assumes sole responsibility for the use of the results obtained from the use of the Services, and for conclusions drawn from the results.

12.2        Nothing in this Agreement excludes or limits the liability of either party:

(a)            for death or personal injury caused by the Supplier's negligence; or

(b)            for fraud or fraudulent misrepresentation; or

(c)            any other matter which cannot by law be excluded or limited.

12.3        Subject to clause 12.1 and 12.2, neither party shall be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:  (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of contracts or opportunity; (d) loss of any software; (e) loss of use of hardware, software or data; or (f) indirect, consequential or special loss; arising out of or relating to this Agreement.

12.4        Subject to clause 12.1, 12.2 and 12.3, the Supplier shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:

(a)            the use of the Service except for its normal intended purpose;

(b)            any adaptation or modification the Service, carried out by anyone other than the Supplier, its agents or subcontractors or without the Supplier's express written consent;

(c)            any defect arising in the Services as a result of misuse, wilful damage, negligence on the part of Customer or its Group Members, abnormal operating conditions or any failure by the Customer or its Group Members to follow any reasonable instructions of the Supplier as to use;

(d)            any Customer Data and/or Customer Materials; or

(e)            any Third Party Applications.

12.5        Subject to clauses 12.1, 12.2, 12.3 and 12.4, the Supplier's total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in respect of the provision of the Services, to the greater of: (a) 100% of the total Service Fees paid during the 12 month period immediately preceding the date on which the claim arose; or (b) £1000.

13. Term and termination

13.1        Either party may terminate this Agreement by giving the other notice in writing:

(a)            as set out in the Licence Agreement;

(b)            at least 30 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or

(c)            otherwise terminated in accordance with the provisions of this Agreement.

13.2        Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a)            the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

(b)            the other party commits a material breach of any other term of this Agreement 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;

(c)            an Insolvency Event occurs;

(d)            if the events at clause 15 continue for more than 30 days.

13.3        On termination of this Agreement for any reason:

(a)            all licences granted under this Agreement shall immediately terminate and the Customer and any Group Member shall cease all use of the Services;

(b)            each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;

(c)            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; and

(d)            at the reasonable cost of the Customer, such costs to be agreed in writing in advance, provide a copy of all Customer Data held by the Supplier in such format as the Supplier is reasonably able to provide and as agreed between the parties in advance.

14. Insurance

Without prejudice to the Supplier's obligations and liabilities under this Agreement, the Supplier shall effect and maintain in force for the duration of this Agreement, with reputable and substantial insurers, such policies of insurance as are sufficient for a business of the Supplier's type, including product liability insurance, professional indemnity insurance and public liability insurance.

15. Force majeure

Each party shall have no liability to the other party 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, act of God, war, riot, civil commotion, pandemic, 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 other party is notified of such an event and its expected duration.

16. Bribery

16.1        The Supplier shall:

(a)            comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including the Bribery Act 2010 ("Act");

(b)            not do anything which would constitute an offence or which would cause the Customer to commit an offence under the Act;

(c)            have and shall maintain in place throughout the term of this Agreement its own policies and procedures (copies of which will be made available to the Customer upon request), including adequate procedures to ensure compliance with the Act as informed by the principles outlined in the guidance to the Act, and will enforce them where appropriate;

(d)            promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement; and

(e)            procure that all associated persons (as defined in the Act) of the Supplier will comply with clauses 16.1(a) to 16.1(d).

16.2        A breach of this clause 16 by the Supplier shall constitute a material breach entitling the Customer to terminate this Agreement immediately on written notice.

17. Modern Slavery

17.1 The Supplier shall:

(a)            take all reasonable steps to ensure that there is no slavery, servitude, forced or compulsory labour or human trafficking occurring in its business or in its supply chain, and shall comply with the Modern Slavery Act 2015; and

(b)            not do anything, and procure that none of its officers, employees or contractors will do anything, that would constitute an offence or cause the Customer to commit an offence under the Modern Slavery Act 2015 ("MSA Offence"), and confirms that it is not subject to an investigation or prosecution of an alleged MSA Offence or aware of any circumstances within its supply chain that could give rise to an investigation or prosecution of an alleged MSA Offence.

17.2        A breach of this clause 17 by the Supplier shall constitute a material breach entitling the Customer to terminate this Agreement immediately on written notice.

18. General

18.1        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.

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

18.3        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.

18.4        Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18.5        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 this clause 18.5 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.

18.6        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.

18.7        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 based on any statement in this Agreement.  Nothing in this clause shall limit or exclude any liability for fraud.

18.8        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.  The Supplier may not 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 without the prior written consent of the Customer.

18.9        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).

18.10     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. Notices

19.1        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 email to the email address provided to the other party.

19.2        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 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.

20. Governing law and Jurisdiction

20.1        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.

20.2        Each party irrevocably agrees that the courts of England 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).

SCHEDULE 1

Data Protection

1.              Data Protection and Data Processing

1.1           The parties shall, at all times, comply with the provisions and obligations imposed by the Data Protection Legislation when processing Personal Data in connection with this Agreement.

1.2           In performance of its obligations under this Agreement, the Supplier shall only process the type(s) of Personal Data, and only in respect of the categories of Data Subjects and types of processing, set out in appendix 1appendix 1 to this schedule 1 (Details of Personal Data Processed).

1.3           The parties shall, at all times, endeavour to comply with the applicable Cybersecurity Requirements when processing Personal Data in connection with this Agreement

1.4           The Customer will ensure that it has all necessary appropriate consents, legitimate interests and notices (as applicable) 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.

1.5           The parties acknowledge that for the purposes of the Data Protection Legislation, and is respect of Personal Data processed by Supplier on behalf of Customer in connection with this Agreement Customer is the Data Controller and the Supplier is the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

1.6           The Supplier shall maintain records of all processing operations under its responsibility that contain at least minimum information required by the Data Protection Legislation and shall make such information available to any regulator on request.

1.7           To the extent the Supplier receives from, or processes any Personal Data on behalf of the Customer in connection with the performance by the Supplier of its obligations under this Agreement, the Supplier shall:

(a)            process such Personal Data only on the written instructions of Customer from time to time (including the those set out in this Agreement) and only for the duration of this Agreement unless the Supplier is required by applicable laws to otherwise process that personal data. 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 process such Personal Data for any purpose other than those set out in this Agreement or otherwise expressly authorised by Customer;

(c)            implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure, dissemination or access (a "Security Breach");

(d)            ensure that the Supplier's personnel who have access the Personal Data are subject to written (or statutory) obligations to maintain the confidentiality of Personal Data; and are trained on the relevant requirements of Data Protection Legislation;

(e)            only process or transfer Personal Data outside of the European Economic Area where the Supplier ensures that there is adequate protection for such Personal Data in accordance with applicable Data Protection Legislation and which may include, entering the Standard Contractual Clauses with Customer and/or any Group Member.

(f)             notify Customer within 48 hours if it receives a request from a Data Subject to exercise its rights under the Data Protection Legislation in relation to their Personal Data;

(g)            taking into account the nature of the processing and the information available to Supplier, notify Customer without undue delay (and in any event within 48 hours) after discovering any Security Breach or any failure of security which leads to, or may lead to, a Security Breach and endeavour to provide full details of the Security Breach including, where possible: (i) the date and time of when the Security Breach occurred; (ii) the type of data that was the subject of the Security Breach; (iii) where possible, the categories and approximate number of Data Subjects concerned; (iv) the identity of each affected Data Subject that has been identified to date; (v) any notifications made to regulators or Data Subjects about the Security Breach; and (vi) details of any steps taken to remedy the Security Breach and recover or safeguard the Personal Data concerned;

(h)            notify Customer if, in Supplier's opinion, any instructions given by Customer infringes the Data Protection Legislation;

(i)              taking into account the nature of the processing and the information available to Supplier, assist Customer in responding to all investigations and any requests from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation under Articles 32-36 (inclusive) of GDPR;

(j)              at the written direction of Customer, delete or return all Personal Data and copies thereof (for which Supplier is the processor and that is processed pursuant to this Agreement) to Customer as soon as reasonably practicable following, and in any event within sixty (60) days of on termination of the Agreement unless required by the applicable law to store the Personal Data and the Supplier has notified Customer accordingly (unless prohibited from notifying by applicable law); and

(k)            make available to the Customer such information in Supplier's possession or control as the Customer may reasonably request with a view to demonstrating Supplier's compliance with this paragraph 1.7 and allow for audits by Customer's to access such records and information on reasonable notice to audit and otherwise verify compliance with this paragraph 1.7.

1.8           The Supplier shall be permitted to appoint Sub-Processors to process the personal data in connection with the Service. The Sub-Processors of the Supplier are listed at https://www.fyld.ai/privacy-policy as may be updated from time to time. Prior to transferring any personal data to a Sub-Processor, the Supplier confirms that it has entered or will enter with the Sub-Processor into a written agreement, incorporating terms which are substantially no less protective than those set out in paragraph 1.7 above ("Relevant Terms"). As between the Customer and the Supplier, the Supplier is responsible and liable to Customer for a Sub-Processor's compliance with the Relevant Terms.

1.9           The parties may, on written Agreement between the parties, revise the provisions of this schedule 1 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).

APPENDIX 1

Processing, Personal Data and Data Subjects

1.              Subject matter of processing

Supplier's provision of the Services to Customer, including the use of Supplier's software for recording site risk assessments and evidencing site work and its progress as well as data aggregation, analytics and machine learning.

2.              Nature and Purpose of processing

The nature and purpose of the processing is the collection , including via Customer's staff in relation to audio/video media and other data input), analysis (including improving Supplier's software and Services), storage, duplication, deletion and disclosure of personal data as necessary to provide the Services, and as may be further instructed by Customer in writing.

3.              Categories of Personal Data

Data relating to individuals provided to Supplier via or in relation the Services, by (or at the direction of) Customer, including:

(a)            Contact information of Customer's employees and Customer's contractors;

(b)            Audio and/or photographs and video captured of Customer's employees and other staff, and potentially of third party data subjects (including where incidental); and

(c)            the following personal data fields:

(i)              User ID

(ii)            FYLD User ID

(iii)           Employee First Name

(iv)           Employee Surname

(v)            Employee Full Name

(vi)           Employee Mobile Number

(vii)          Employee E-mail

(viii)         Site Geolocation

(ix)           Site Address

(x)            captured personal data via (including where incidental):

(A)           Video

(B)           Photography

(C)           Audio

4.              Categories of data subjects

Data subjects may include Customer's clients or end users; employees, contractors or other staff; suppliers; and potentially third parties on site during site work about whom data is provided to Supplier via the Services by (or at the direction of) Customer.

5.              Duration of the processing

5.1           The Supplier will process Customer Data for the duration of this agreement, or until such data is no longer necessary for the purposes of either party performing its obligations under this agreement (to the extent applicable), unless otherwise agreed between the parties in writing.