General Terms

Canary7 General Terms

1.       INTRODUCTION

1.1      This page sets out the general customer terms (General Terms) which apply to any Service (as defined below) which Supplier (as defined below) licences or provides to any Customer (as defined below), unless Customer has entered into a separate written contract with Supplier signed by both parties in respect of the Services.

1.2      The parties’ agreement for the licensing, use and provision of the Services is made up of (i) these General Terms; (ii) the SLA; (iii) the Proposal; and (iv) any other written document either issued by Supplier (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.3      When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.

1.4      Any order placed by Customer shall only be deemed to be accepted upon Supplier’s signature of, or email agreement to, the Proposal, at which point, and on which date the Agreement shall come into existence.

1.5      These General Terms are published on Supplier’s website. Customer should print or save a copy of these General Terms for its records.  Supplier may amend these General Terms from time to time during the Term and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so.  Every time Customer agrees a new Proposal with Supplier it should check these General Terms to ensure that it understands the terms which will apply to the Agreement at that time. This version one of these General Terms was most recently updated on October 2021 . Historic versions may be obtained by contacting Supplier.

1.6      Any Proposal issued by Supplier shall be valid for a period of 30 days (or such longer period specified on the Proposal) from the date of issue, if not agreed by Customer, at which point the offer outlined in the Proposal shall lapse.

2.       INTERPRETATION

2.1      In the Agreement the following definitions and rules of interpretation shall apply:

Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity;

Agreement has the meaning given to it in clause 1.2;

Authorised Users means those employees and agents of, and independent contractors providing services to, the Customer and any of its Affiliates only, who are authorised by the Customer to use the Subscription Services and their ancillary documentation, who have agreed to the terms of the EULA and in respect of whom the Customer has purchased a User Licence;

Beta Services means any Subscription Service identified as a beta, preview or similar;

Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which Customer is incorporated;

Commencement Date means the date specified in the Proposal;

Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Subscription Services and their ancillary documentation, any product or feature plans, and the pricing offered by Supplier) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures each have the meaning given to them in relevant UK Data Protection Law;

Charges means the applicable charges for the Services from time to time, including the Professional Services Charges and the Subscription Charges;

Companies means a specific entity or corporate client registered on the Customer’s account, the fulfilment, processing or storage of whose products Customer manages through the Subscription Services;

Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company and Controls and Controlled shall be construed accordingly;

Customer means the organisation which has purchased User Licences from Supplier, as specified in the Proposal;

Customer Data means the data, content and images inputted by the Authorised Users or (if applicable) Supplier (or its sub-contractors) on Customer’s behalf for the purpose of facilitating Customer’s or its Authorised Users’ use of the Software. Customer Data shall be deemed to be the Confidential Information of the Customer where it is not uploaded or disclosed in a manner that contemplates it being made available or viewable by third parties (other than Customer’s Authorised Users);

Customer Equipment means a functioning hardware system and software facilitating access to the following modern and high usage web browsers, namely:  Chrome, Mozilla, Firefox, Safari or MS Edge, for the current and previous version of each such browser, and internet access, or such other relevant software and/or hardware reasonably notified to Customer by Supplier from time to time;

Customer Service User means an Authorised User without full access to the Subscription Services. Unless otherwise agreed in the Proposal, Customer Service Users are typically restricted from accessing any Customer Data stored on the Customer’s account on the Subscription Services other than details of inbound and outbound shipments and any warehouse inventories, but can export, add and edit data within those categories. Customer Service User Licences are User Licences issued in respect of Customer Service Users;

Data Protection Law means all applicable data protection and privacy legislation in force from time to time in the UK or the other jurisdiction in which Customer is based, including, to the extent applicable, the UK or EU General Data Protection Regulation (GDPR);

EULA means Supplier’s standard end-user licence agreement which all Authorised Users are required to sign up to before beginning to use the Services, available on request;

Free Service means any Service that is provided without a charge;

Feedback means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on Supplier products or services;

General Terms has the meaning given to it in clause 1.1;

Go Live Date means the earlier of (a) the date when Customer and/or its Authorised Users first use the Subscription Services in an operational (i.e. non test or training) environment or instance; (b) the date falling ninety (90) days from the Commencement Date, unless the failure to achieve the Go Live Date was directly caused by the failure of Supplier to comply with its obligations regarding the Implementation Services under the Agreement;

Implementation Services means the implementation Services and/or deliverables to be provided in respect of the Subscription Services, to facilitate setting up the Customer’s account for the Subscription Services, as described in the Proposal;

Initial Subscription Term means the initial subscription term set out in the Proposal, which shall be 12 months if not specified;

Licence Restrictions means the licence restrictions specified or referred to in the Proposal or elsewhere in the Agreement;

Order means an order for fulfilment of a physical product recorded through the Subscription Services;

Payment Terms means the payment terms set out in the Proposal. If none are specified the default payment terms shall require payment of any Subscription Charges in full in advance of the Initial Subscription Term or any subsequent Renewal Term, on demand, any Order overage charges monthly in arrears and payment for any Professional Services monthly in arrears, on 30-day payment terms;

Purpose means accessing and using the Subscription Services for the Customer’s and its Affiliate’s lawful internal business purposes in line with their contemplated functionality;

Privacy Policy means Supplier’s privacy and cookies notice and policy, available here https://www.canary7.com/privacy-policy/;

Professional Services means any bespoke professional services to be provided by Supplier to Customer (as agreed from time to time or set out in the Proposal), other than the Subscription Services or basic Support, including for example, installation and technical assistance services on Customer site, on-request upgrades etc;

Professional Services Charges means the service charges detailed in the Proposal for any Professional Services, or which Supplier confirms to the Customer from time to time in respect of any further agreed Professional Services;

Product Expert means a Customer product expert, entitled to raise direct Support queries and trained in use of the Subscription Services, the number of which will be specified in the Proposal. Each Product Expert must also have a standard User Licence;

Proposal means the written quotation for, among other things, licensing and provision of the Services, provided by Supplier to Customer;

Renewal Period means rolling terms of 12 months (or such other period as Supplier may agree in writing with Customer in the Proposal);

Retail Prices Index means the index of that name published by the UK Office of National Statistics, or such successor body or successor index as shall apply from time to time in future (so as to most closely mirror that index);

Information Security Policy or ISP means Supplier’s information security policy setting out how it will safeguard the Customer Data stored via the Subscription Services from time to time available on request

Sensitive Information means credit or debit card numbers; personal financial account information; national insurance or social security numbers or equivalents; passport numbers; driver’s licence numbers or similar identifiers; passwords; details of racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information defined under the UK Data Protection Legislation as ‘Sensitive Personal Data’ (or any analogous term which may apply from time to time), or any information subject to the US Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information as amended or applicable worldwide from time to time;

Services means both the Subscription Services and the Professional Services;

Software means Supplier’s warehouse and/or order management software application, Canary7®, which provides Authorised Users access to the Canary7® portal and which includes any general upgrades released to all customers to which Customer is otherwise entitled under the terms of the Agreement;

Subscription Charges means the total amounts specified online to Customer when purchasing User Licences from time to time or otherwise payable in accordance with the terms of the Agreement, to be paid in accordance with the timeframes and other stipulations set out in the Agreement;

Subscription Services means hosting of the Software and making it available for access to Authorised Users using Customer Equipment via the relevant sub-domain allocated to Customer within the Canary7 URL specified by Supplier;

Subscription Term means, in respect of each User Licence, the term beginning on the Go Live Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clause 13.3), unless and until the Agreement is terminated in accordance with its terms;

Supplier means Canary 7 Ltd (company number NI685499) whose registered office is at 7 Corchoney Road, Cookstown, Northern Ireland, BT80 9HU;

Support means the second-line support services to be provided by Supplier to each Product Expert, for the relevant Subscription Term;

Term means the term of the Agreement as defined in clause 16.1;

Unused Portion means, in respect of any period of the Subscription Term for which Customer has made a payment in advance, the proportion which the number of days following termination of the Agreement until the end of such remaining Subscription Term bears to the total number of days in that period;

User Licences means the subscriptions purchased by Customer which entitle Authorised Users to access and use the Subscription Services and its ancillary documentation in accordance with the Agreement. Restrictions may attach to specific User Licences for specific Authorised Users, as specified in the Proposal; and

Warehouse means a discrete physical warehouse space, at which the Customer may store products which are managed, processed or logged via the Subscription Services, as may be logged on the Customer’s account for the Subscription Services.

2.2      Clause headings shall not affect the interpretation of the Agreement. References to clauses are to the clauses of these General Terms.

2.3      Words in the singular shall include the plural and vice versa.

2.4      A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

• 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.

 

3.       USER LICENCES

3.1      Customer warrants and represents that any information provided to Supplier is complete, accurate and not misleading (including information concerning its Authorised Users and other information providing as part of its account / Agreement setup process), that it will inform Supplier if at any time that information changes whilst Customer or its Authorised Users continue to use the Subscription Services and acknowledges that Supplier may rely on such information and not seek to establish its reliability.

3.2      In particular, where Customer is or purports to represent an organisation or entity, the person entering into the Agreement on Customer’s behalf warrants and represents that it is entitled to act in this capacity and to bind such organisation or entity (which shall be correctly specified as Customer in the relevant Proposal), and perform all actions taken by Customer or its Authorised Users via the Subscription Services, including uploading any Customer Data to Customer’s account (including making it available to other Authorised Users, or publicly available to third parties).

3.3      Customer acknowledges that subject to certain limitations, and any limitations set by any Customer accounts with specific privileges, Authorised Users have administrative control over their accounts and the Customer Data stored on the central Customer accounts (to which they have access), and Customer shall have sole responsibility for supervision and observation of the actions of its Authorised Users and restricting access privileges for each of its Authorised Users as it sees fit.

3.4      Subject to payment and the other restrictions set out in the Agreement, Supplier hereby grants to Customer, subject to the Licence Restrictions, including any restrictions applicable to the type of User Licence each Authorised User has been granted, and subject to the EULA applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Subscription Services during the Subscription Term of the User Licences for the Purpose.

3.5      In relation to the Authorised Users, Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users with the terms of the Agreement and the EULA, and for compliance by any Affiliates with the terms of the Agreement, and that the restrictions on Customer set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users, including Product Experts, shall not exceed the number of User Licences Customer has purchased from time to time and Customer will not permit use by the Authorised Users to exceed the type of User Licence purchased; (c) it will not allow or suffer any User Licence 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 Subscription Services and/or their documentation; (d) each Authorised User shall keep a secure password for their use of the Subscription Services and its documentation, and that each Authorised User shall keep his password confidential; (f) it shall permit Supplier to audit the Subscription Services in order to establish the name of each Authorised User; (g) if any of the audits referred to in clause 3.5(f) reveal that Customer has underpaid Subscription Charges to Supplier, then without prejudice to any other right to which it may be entitled, Customer shall pay to Supplier an amount equal to such underpayment (as calculated by reference to the Subscription Charges for additional Authorised Users) within 10 Business Days of the date of the relevant audit; and (h) if any of the audits referred to in clause 3.5(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Supplier’s other rights, Customer shall promptly disable such passwords and Supplier shall not issue any new passwords to any such individual.

3.6      If the Proposal states that the number of User Licences is unlimited (including in respect of any particular category of User Licence, e.g. Customer Service User Licences only), Customer may issue unlimited User Licences of the kind permitted by creating relevant Authorised Users within the Subscription Services, as long as it acts reasonably and in good faith in this regard. All Authorised Users must be using the Subscription Services for purposes associated with the Customer’s and its Affiliates lawful business. The Customer must not create Authorised Users to circumvent the Subscription Charges such persons would otherwise need to pay for the use of the Subscription Services for other purposes. Supplier shall exercise its reasonable discretion in assessing whether the Customer has adhered to these restrictions.

3.7      Customer must not permit any of its Authorised Users to (a) be under the legal age to use the Subscription Services in the country the Authorised User resides in (or whose laws apply to them); (b) share with or permit access to any Authorised User’s account by multiple people; (c) operate a service or automated account, where there is not a single human individual responsible for that account; or (d) otherwise in breach of its EULA.  If Supplier determines that there has been a breach of this clause, in addition to its other rights, we the right to terminate affected Authorised User accounts or the Agreement as noted below.

3.8      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 any other illegal activity; or (f) causes damage or injury to any person or property; and Supplier reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.

3.9      Customer shall not: (a) other than as permitted by law, 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 its documentation (as applicable) in any form or media or by any means; nor attempt to 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 in order to build a product or service which competes with the Subscription Services; or (c) use the Subscription Services to provide services to third parties; or (d) 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 Subscription Services, other than as provided under this clause 3; or (f) interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Subscription Services or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs.

3.10    CUSTOMER AGREES NOT TO USE THE SUBSCRIPTION SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. SUPPLIER WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION.

3.11    Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or their documentation and, in the event of any such unauthorised access or use, promptly notify Supplier.

3.12    The rights provided under this clause 3 are granted to Customer only and shall not be considered granted to any subsidiary or holding company of Customer.

3.13    The limits associated with the Subscription Services, which are generally subject to fair usage limits, are specified in the Proposal or elsewhere in the Agreement. If, at any time whilst using the Subscription Services, Customer exceeds the Licence Restrictions, Supplier shall charge Customer, and Customer shall pay, Supplier’s charges for such excessive use (at the rates specified in the Proposal if applicable, or at Supplier’s then prevailing rates, where not specified) on demand. These may include, as applicable (and subject to the terms of the Proposal), limits on numbers or categories of User Licences, limits on the number of Companies on the Customer’s account, limits on the number of Orders, and limits on the numbers of Warehouses registered on Customer’s account. There can be monitored by Customer through its account on the Subscription Services. Additional User Licences, Companies or Warehouses can be purchased up-front by contacting Supplier (or via Customer’s account). Excess Orders will also be charged monthly in arrears (whether or not the Customer is paying for the Subscription Services on a monthly or yearly basis).

 

4.       SERVICES

4.1      From the Commencement Date Supplier shall commence provision of the Implementation Services with a view to making the Subscription Services available to Customer in accordance with the Agreement.

4.2      Supplier’s approach to Implementation Services is based on shared project responsibility, resulting in a cooperative, hands-on project that is jointly managed by Supplier and Customer. In addition to the assumptions and requirements set forth elsewhere in the Agreement, Customer acknowledges and agrees that the above approach, Charges and any timelines Supplier may have mentioned in relation to the target Go Live Date are based on the following assumptions (as applicable), and these may change where these assumptions are not met:

4.2.1   Customer will accurately complete all applicable questionnaires, templates, and other documents and requests for data as reasonably required for Supplier to fulfil its implementation roles and responsibilities, to the best of Customer’s knowledge and with timely assistance from Supplier where any such requests are unclear, each in the manner reasonably prescribed by Supplier by the agreed upon timelines;

4.2.2   Customer will, where applicable, provide reasonable access to Customer’s personnel with the appropriate knowledge of Customer’s systems and their configuration;

4.2.3   Any material changes to scope described in the Proposal will be addressed through a change request, if these have a material impact on costs;

4.2.4   Any configuration or test environment (including all data) will be decommissioned after a period of sixty (60) days from the Go Live Date;

4.2.5   A named Customer Product Expert will be appointed during project launch stage, will complete necessary training specified by Supplier prior to or during project kick-off, and will be available for the duration of the project (save for illness, absence, leave or departure from the Customer’s employment);

4.2.6   Customer will confirm acceptance for all Implementation Services in a reasonably timely fashion and per the project schedule; and

4.2.7   Customer will identify any import files or data streams by project kick-off. Any additional feed(s) identified thereafter may result in additional Charges.

4.3      Supplier shall provide the Support, the Subscription Services and any agreed Professional Services to Customer during the Subscription Term on and subject to the terms of the Agreement.

4.4      Supplier will, as part of the Services and at no additional cost to Customer other than the Subscription Charges, provide Customer with the Support in accordance with Supplier’s support services policy in effect at the time that the Services are provided, subject to fair usage of the Support by Customer. Supplier is a UK based company and typically deals with Support tickets between 9 am and 5 pm UK time on Business Days in the UK. Support tickets may be raised via the ticketing system within the Subscription Services, or by telephone to any number specified by Customer from time to time.  Customer agrees to provide access to Supplier to their account where required in order to provide remote support. Supplier may also provide online support resources for Authorised Users. Customer’s Product Experts raise Support tickets and be available to interact with Supplier’s support team where they have any queries regarding a particular request. For clarity, subject to fair usage, there are no limitations on the number of Support tickets or requests that may be raised by Customer’s Product Experts. Other Authorised Users must raise any Support tickets via the nominated Product Experts.

4.5      Bespoke upgrades are not normally possible in respect of the Subscription Services, however, if the Customer wishes to request that a particular feature of the Subscription Services be improved or added at any time, its Product Expert may request, and this may be agreed and undertaken as a Professional Service, subject to agreement between the parties as to the nature of the request, timing and the charges for facilitating this request. Any on-site support required by Customer and agreed by Supplier will be chargeable at Supplier’s then prevailing standard daily rates as a Professional Service.

5.       WARRANTIES ANDSUPPLIER’S OBLIGATIONS

• Each party represents and warrants to the other that it has the legal power and authority to enter into the Agreement (in the case of an individual representing a Customer, on that organisation or entity’s behalf), and that the Agreement and each Proposal is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of the Agreement, and that the Agreement or Proposal is accordingly binding upon each party and enforceable per its terms.
• Supplier undertakes that the Services will be performed with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as Supplier, and that it shall use reasonable endeavours to ensure that the Subscription Services will perform substantially in accordance with and subject to any limitations outlined in the Specification, further subject to downtimes for planned maintenance or maintenance outside Supplier’s reasonable control (including those attributable to its hosting services provider). Supplier shall use reasonable endeavours to inform Customer in advance of any planned service interruption to the Subscription Services. Otherwise, subject to any additional provisions set out in the SLA, Supplier gives no warranties concerning the Subscription Services.

5.3      The undertaking at clause 5.2 shall not apply to the extent of any non-conformance which is caused by (a) use of the Services contrary to Supplier’s instructions or otherwise than as permitted by the Agreement, (b) modification or alteration of the Software or Services by any party other than Supplier or Supplier’s duly authorised contractors or agents, (c) issues with Customer Equipment; (d) interaction of the Software with other software programmes or plugins maintained by Customer; (e) use of the Software in an application, or with any software, hardware or materials for which it was not intended; or (f) acts or omissions otherwise attributable to Customer and/or outside Supplier’s reasonable control. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable timeframe, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.2. Notwithstanding the foregoing, Supplier does not warrant that Customer’s use of the Subscription Services will be uninterrupted or error-free, nor that the Services and/or their documentation will meet Customer’s requirements.

5.4      Customer acknowledges that it has assessed the suitability of the Services for its requirements. Supplier does not warrant that the Software, the Services and/or their documentation will be suitable for such requirements or that any use will be uninterrupted or error free.

5.5      The Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

• Timing for performance of Supplier’s obligations under the Agreement shall not be of the essence.

5.7      Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

6.       CUSTOMER’S OBLIGATIONS

Customer shall: (a) at its cost, provide Supplier with all necessary co-operation in relation to the Agreement, and all necessary data and access to information as may be required by Supplier, its agents or contractors, in order to render the Services, including but not limited to applicable specifications, data management decisions, approvals, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under the Agreement; (c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays, Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) ensure that the Authorised Users and Subscribing Organisations use the Services in accordance with the terms and conditions of the Agreement and shall be responsible for any breach of the Agreement by either; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment; (h) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the services and uploading all such content and data to the site provided to Customer using the Services. In the event that Customer requires any assistance from Supplier in this regard, Supplier may provide such assistance as it deems appropriate at its then prevailing charges as a Professional Service; and (j) comply and procure the compliance of its Authorised Users with any reasonable directions given to it by Supplier from time to time.

 

7.       THIRD PARTY INTEGRATIONS

7.1      Additionally, Customer may use standalone third party applications when accessing the Subscription Services, for example where it uses application that integrate with or import or export data feeds to the Subscription Services or use the Subscription Services to authenticate or access another service. While the Agreement represents our agreement with Customer, other parties’ terms govern their relationships. Whilst Supplier takes no responsibility for any Authorised User’s or Customer’s adherence to such terms or the actions taken by such third-parties, Customer warrants and represents that it will honour and adhere to such terms when using the Subscription Services (including that it will pay all relevant fees for such services or sites and maintain valid subscriptions at all times) and that Customer will not hold Supplier responsible for any interactions with such third parties or their terms, including for wrongful or negligent acts or omissions, or breaches of contract.

7.2      When importing third party data streams using the Subscription Services, the Customer warrants and represents that it shall ensure it use industry standard anti-virus technology and otherwise checks such data streams for any malicious code or content, including Customer Data which would breach the terms of the Agreement.

7.3      Supplier does not control the content, messages or information found in or on or accessible through any third party services accessible through or integrated with the Subscription Services, including data which may be pulled through to the Subscription Services. Supplier disclaims and will have no liability regarding such software, sites or services and any actions resulting from Customer’s or its Authorised Users’ use of the same. Such sites or services’ availability does not mean Supplier endorses, supports or warrants such sites or services.

7.4      Supplier shall not be responsible for any issues with performance of any third party applications, and their integration within and functioning through the Subscription Services at all times is outside Supplier’s control and is not guaranteed. The third party integrations supported by the Subscription Services are not guaranteed, may change from time to time. Customer must always have a valid third party account or subscription for any such applications and pay all relevant fees for same (which are not included as part of the Subscription Services)

7.5      Customer acknowledges that to the extent it authorises any third party application to connect to the Subscription Services, Customer Data (including information Customer may regard as Confidential Information) may be exported to such applications and stored on relevant third party accounts, and that this is a necessary feature to facilitate the Subscription Services.

 

8.         CHARGES AND PAYMENT

8.1      Customer shall pay the Subscription Charges (and any Professional Service Charges, or other charges specified or agreed) to Supplier in accordance with the Payment Terms.

8.2      If Supplier has not received payment  for any Subscription Charges in advance, and any Professional Services Charges within 10 days after the due date, or notice of a bona fide dispute, without prejudice to any other rights and remedies of Supplier: (a) Supplier may, without liability to Customer, disable Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b)  interest shall accrue on such due amounts at annual rate equal to 4% over the then current base lending rate of Bank of England at the date the relevant invoice was issued, compounded monthly, commencing on the due date and continuing until fully paid, whether before or after judgment, or the highest rate otherwise permitted by law.

8.3      If Customer is paying by credit card, direct debit or other online payment methods, it authorises Supplier to charge Customer’s credit card, bank account or other online payment methods for all fees payable during the Subscription Term. Customer further authorises Supplier to use a third party to process payments and consent to disclose Customer’s payment information to such a third party.

8.4      All amounts and fees stated or referred to in the Agreement: (a) shall be payable in pounds sterling (unless another currency is denominated in the Proposal); (b) are, subject to clause  16.6, non-cancellable and non-refundable; (c) are exclusive of taxes or duties payable under the Agreement as specified below, which shall be added to Supplier’s invoice(s) at the appropriate rate; and (d) shall be paid by bank transfer in full and cleared funds to the account specified on Supplier’s invoice, or by such other payment method (which must be kept up to date and accurate) as Supplier may accept from time to time.

8.5      Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Supplier’s net income or gross revenue) imposed or become due in connection with the provision of Services to Customer under the Agreement. If Customer is located in the EU, Customer must provide Supplier with the VAT registration number under which Customer is registered in Customer’s member state. If Customer does not give Supplier a VAT registration number before Customer’s transaction being processed, Supplier will not issue refunds or credits for any VAT charged.

8.6      If Customer is required to deduct or withhold any tax it must pay the amount deducted or withheld as required by law and pay Supplier an additional amount so that Supplier receives payment in full as if there were no deduction or withholding.

• Customer must keep its contact information, billing information and credit card information (where applicable) up to date through its account.

8.8      Supplier shall at the start of each Renewal Period, having given at least fourteen (14)  days’ prior notice to Customer (including via email or by notification within the Canary7 platform), be entitled to increase the Subscription Charges (including for any additional User Licences purchased) and the Subscription Charges set out in Proposal shall be deemed to have been amended accordingly for the duration of the Renewal Period (unless the Customer objects to such increase within 7 (seven) days of notice from Supplier, in which case the Agreement may not renew into any Renewal Period unless the parties otherwise agree). If no notice is given, the Subscription Charges applicable for over each subsequent Renewal Period shall be increased by the percentage increase from apply annual increases to the Charges in line with the annual increase in the Retail Prices Index over such period.

 

9.       PROPRIETARY RIGHTS AND DATA

9.1      Customer acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in or arising from the Services, Software and their documentation. All content on the Supplier’s site and the Subscription Service is copyright © Canary 7 Ltd. The Canary7® name and brand, and all associated logos, are each the registered or unregistered trademarks of Supplier.

9.2      Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software and its documentation. This shall be without prejudice to Customer’s ownership of any background intellectual property rights owned by it separately from the Agreement and/or pre-dating the Agreement.

9.3      Customer may not duplicate, copy, or reuse any portion of Supplier’s Software or Services or trademarks, without Supplier’s express permission, save that Customer may link to the Supplier’s site, provided it does so fairly and legally and in a way that does not damage Supplier’s reputation or take advantage of it. Customer must not establish a link in such a way as to suggest any form of association, approval or endorsement on Supplier’s part where none exists. Customer must not establish a link to Supplier’s Site on any website that Customer does not own unless Customer has relevant authorisations. Supplier reserves the right to withdraw linking permission without notice. The website in which Customer is linking must comply in all respects with the content standards set out in the Agreement and the EULA. Our Site must not be framed on any other site. Supplier may withdraw this licence at any time on notice. If Customer wishes to link to or make any use of data on Supplier’s Site other than that set out above, it must obtain Supplier’s prior written consent.

9.4      Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and the means by which it acquired such Customer Data.

9.5      Supplier shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including in accordance with the Supplier’s ISP. However, Customer understands and acknowledges that use of the Subscription Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Supplier, and that Supplier cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. Supplier does not guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat Supplier’s security measures or those of Supplier’s third party service providers.

9.6      Supplier shall not modify Customer Data, disclose Customer Data or access Customer Data except: (a) as required by law; (b) as expressly permitted by Customer; (c) to provide the Services; (d) to address technical problems or issues with the Services; or (e) at Customer’s request when providing Support.

9.7      Neither Customer or any Authorised Users may access the Subscription Services where they are engaged as an employee or contractor with any business that competes with Supplier own or to attempt to gain access to Supplier’s Confidential Information with a view to building, creating or amending any software or service which competes with any element of the Subscription Service offered by Supplier. Further, during the Subscription Term, and for twelve (12) months thereafter, Customer shall not, or attempt to, build or develop any product or service that commercially competes with or is substantially similar to the Software, which it provides or intends to provide to third parties for payment (i.e. which is not solely intended for internal use). This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and Customer can demonstrate that (a) an independent third party has licensed or sold the Software (or something similar to it) to it on arms’ length terms, and (b) such competing solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any Confidential Information made available by Supplier to the Customer, or to which the Customer otherwise gained access, under the Agreement or any previous contract between the parties.

9.8      If Customer (including its Authorised Users) gives Supplier any Feedback, it acknowledges and agrees by accepting the Agreement that Supplier will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit or incorporate the Feedback into Supplier’s products, services, and documentation.

• Customer acknowledges that it has no right to access the Software in source code form or unlocked coding or comments.

9.10    Supplier shall use its reasonable commercial endeavours to back-up all Customer Data on a daily basis but otherwise backup of all Customer Data shall be the sole responsibility of Customer. In relation to images comprised in Customer Data, Supplier shall use its reasonable commercial endeavours to procure from its hosting services provider back-up of such images in accordance with its hosting services provider’s terms for provision of back-up services from time to time. In the event of any loss of or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier (or its hosting services provider, as appropriate according to the nature of Customer Data which has been lost or damaged). Customer should note that Supplier’s typical retention periods for Customer Data are as set out in its Privacy Policy.

10.       DATA PROTECTION

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

• The parties acknowledge that for the purposes of the Data Protection Law, in relation to any Personal Data comprised within Customer Data (Customer Personal Data), Customer is the data controller and Supplier is the data processor. Such Personal Data shall only be processed by Supplier in accordance with any lawful instructions reasonably given by Customer from time to time in writing, as reasonably necessary to fulfil the Agreement (including as required by the underlying operating procedures for the Software) and exercise Supplier’s rights and obligations hereunder and as applicable in accordance with the terms of Supplier’s Privacy Policy. Supplier’s Privacy Policy provide detailed notice of Supplier’s privacy and data use practices concerning any personal data comprised in Customer Data. Supplier requires all authorised users and customers to adhere to the relevant provisions of the Privacy Policy. Customer shall be responsible and liable for its Authorised Users’ adherence to these requirements.

10.3    As between the parties, where each party processes any Personal Data provided by or relating to the other party or its employees otherwise than Customer Personal Data, including employee names and email addresses of employees of Customer with whom Supplier interacts (for example), each party acknowledges that they shall act as a data controller in relation to such Personal Data and only process it for specified purposes in accordance with each party’s respective privacy policy for the purposes of contract administration or otherwise in its own legitimate interests, as permitted under Data Protection Law.

• Without prejudice to the generality of clause 1, Customer must ensure that its use of the Subscription Services and all Customer Data is at all times compliant with the terms of the Agreement, all applicable laws and regulations including Data Protection Law (nationally and internationally) and Customer represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to provide all Customer Data to Supplier for the purposes and duration of the Agreement and to grant the rights granted to Supplier in the Agreement; and (b) Customer Data and its transfer to and use by Supplier as authorised by Customer under the Agreement do not violate any laws (including without limitation those relating to export control, the principle of demonstrable “consent” under Data Protection Law, specifically Article 7 of the EU GDPR) and electronic communications) or rights of any third party, or data subject, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than Supplier’s security obligations under clause 9.3, limited back-up obligations in clause 9.7, and legal obligations under Data Protection Law (as set out in this clause 10) and confidentiality obligations in clause 11, Supplier assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of determining the purpose and manner in which Customer Data is to be processed, used, disclosed, stored, or transmitted.

10.5    Without prejudice to the generality of clause 10.1, Supplier shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of Customer unless Supplier is required by Data Protection Law to otherwise process that Customer Personal Data; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer 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; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep Customer Personal Data confidential; (d) not transfer any Customer Personal Data outside of the UK or the EEA unless the prior written consent of Customer has been obtained and the following conditions are fulfilled: (i) Customer or Supplier has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) Supplier complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Customer Personal Data that is transferred; and (iv) Supplier complies with reasonable instructions notified to it in advance by Customer with respect to the processing of Customer Personal Data; (e) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify Customer without undue delay on becoming aware of a Personal Data breach; (g) at the written direction of Customer, delete or return Customer Personal Data and copies thereof to Customer on termination of the agreement unless required by Applicable Law to store Customer Personal Data (subject always to Customer having paid Supplier any then outstanding charges owing under the Agreement); and (h) maintain complete and accurate records and information to demonstrate its compliance with this clause.

10.6    Customer consents to Supplier appointing the categories of sub-processor listed in the Privacy Policy or otherwise notified to Customer from time to time by Supplier, as third-party processors of any Personal Data processed by Supplier under the Agreement. Supplier confirms that it has entered or (as the case may be) will enter with such third-party processors into a written agreement substantially on those third party’s standard terms of business (which shall at a minimum require such sub-processors to treat any Customer Data as confidential and process any Customer Personal Data in compliance with Data Protection Law). As between Customer and Supplier, Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.

10.7    If Supplier is deemed to process any personal data on Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Agreement would represent the data processing agreement envisaged by Article 28 of the EU GDPR (and the equivalent provision under UK GDPR), together with the relevant provisions of Supplier’s Privacy Policy, which sets out the categories of personal data and data subjects, where Customer is the data controller and Supplier is a data processor.

10.8    Customer hereby consents to Supplier conducting credit investigations, from time to time, including such requests for and exchange of information to and from consumer reporting agencies or credit grantors as it may require to approve and maintain any funding arrangements to be granted by Supplier in relation to the Services, and to provide payment history information to such agencies.

 

11.     CONFIDENTIALITY

11.1    Neither party will use the other’s Confidential Information except as permitted under the Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its information of a confidential and proprietary nature but in any event at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure of the other party’s Confidential Information, including, without limitation, disclosing such Confidential Information strictly only to those of its or its Affiliates’ employees, representatives, consultants, contractors or agents (together Representatives) who need to know such information, are subject to restrictions around the use of such Confidential Information substantially similar to those set out in this clause. Each party shall be liable and responsible for its Representatives adherence to such terms. The preceding obligations will not restrict either party from disclosing Confidential Information of the other party under the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable such party to contest such order or requirement (to the extent permitted by law).

11.2    For the avoidance of doubt, Supplier considers Customer Data not publicly disclosed by Customer to be Customer’s Confidential Information and will protect and keep confidential such Confidential Information per (this) clause 11. Supplier may access and use such Confidential Information under the following circumstances (a) with Customer’s consent and knowledge, for support reasons; (b) if it have reason to believe such Confidential Information violates the law or of the Agreement (including the EULA in respect of a specific Authorised User’s usage), in which case it reserves the right to access, review, and remove them; (c) where it is compelled by law to disclose Customer’s Confidential Information; or (d) when access is required for operational or security reasons, including when access is required to maintain ongoing confidentiality, integrity, availability and resilience of Supplier’s Subscription Services (in which case access will be limited to specifically authorised personnel and only exercised to the extent necessary to facilitate such purposes).

11.3    Customer is responsible for managing access to its account and Customer Data stored thereon, including invitations, administrative control, and access. Supplier is not responsible for the actions of any of Customer’s Authorised Users in this regard. Nor is Supplier responsible for any third party’s or Authorised User’s adherence to any terms imposed by Customer as a pre-requisite for access to its Customer Data.

11.4    In accessing the Subscription Services, Customer and its Authorised Users may also gain access to information relating to Beta Previews which Supplier considers being Confidential Information, and Customer agrees on behalf of itself and its Authorised Users to protect and keep strictly confidential such Confidential Information per this clause 11.

 

12. NON-SOLICITION
    • During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through the Agreement. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this clause.

 

13.     INDEMNITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

13.1    Customer shall defend, indemnify and hold harmless Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with its and/or the Authorised Users’ use of the Subscription Services including, without limitation, for any liability, damages, costs or claims incurred by Supplier due to Customer’s use of the Subscription Services for any purpose outside of the Purpose or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or Customer’s use of the Subscription Services in breach of the Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law, save to the extent directly attributable to Supplier’s breach of the Agreement.

13.2    Supplier shall, subject to the other provisions of this clause 13 and the limitations in clause 14, defend Customer against any claim that the Subscription Services infringe any copyright, trade mark, patent or right of confidentiality and shall indemnify Customer for any amounts awarded by a court of competent jurisdiction against Customer in judgment or settlement of such claims, or agreed to by Supplier, provided that: (a) Supplier is given prompt notice of any such claim, together with all relevant details of the claim; (b) Customer provides reasonable co-operation to Supplier in the defence and settlement of such claim, at Supplier’s expense; and (c) Supplier is given sole authority to defend or settle the claim, and Customer does not compromise, settle or admit liability with respect to any claim without Supplier’s prior written consent (not to be unreasonably withheld).

13.3    In the defence or settlement of any claim, Supplier may procure the right for Customer to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

13.4    In no event shall Supplier, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on: (a) a modification of the Software or Subscription Services by anyone other than Supplier or Supplier’s authorised contractors or agents or (b) Customer’s use of the Services in a manner contrary to the instructions given to Customer by Supplier or Supplier’s authorised contractors or agents; (c) Customer’s use of the Subscription Services after notice of the alleged or actual infringement from Supplier or any appropriate authority; or (d) any element of the Software (or the Customer Data’s integration with same) not attributable to the Supplier (for example, Customer databases, or bespoke upgrades to the Software undertaken at the Customer’s direction incorporating content provided by the Customer).

13.5    The foregoing provisions of clause 13 state Customer’s sole and exclusive rights and remedies, and Supplier’s (including Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14.     LIMITATION OF LIABILITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

14.1    This clause 14 sets out the entire financial liability of Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of the Agreement (including without limitation, any claim under clause 13.1 or clause 13.3); (b) any use made by Customer of the Software, Support or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

14.2    Except as expressly and specifically provided in the Agreement: (a) 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 the Agreement, including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement; (b) the Services and all other services provided, procured and/or sub-contracted by Supplier under the Agreement, are provided to Customer on an “as is” and “as available” basis; and (c) Customer assumes sole responsibility for the use of the Services and their associated documentation by Customer and Authorised Users, and for conclusions drawn from such use, including any decisions made as a result of the Customer’s use of the Subscription Services. Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to Supplier by Customer in connection with the Services, or any actions taken by Supplier at Customer’s direction.

14.3    Supplier does not warrant that the Subscription Services will meet Customer’s requirements; that the Subscription Services will be uninterrupted, timely, secure, or error-free; that the information provided through the Subscription Services is accurate, reliable or correct; that any defects or errors will be corrected; that the Subscription Services will be available at any particular time or location; or that the Subscription Services is free of viruses or other harmful components. Supplier will not be responsible for any risk of loss resulting from Customer’s downloading or using files, information, Data or other material obtained from the Subscription Service.

14.4    Supplier may, from time to time at its discretion, generally upgrade and improve the Subscription Services as it sees fit, and Customer acknowledges that such upgrades and improvements may affect its use of the Subscription Services.

14.5    Nothing in the Agreement excludes the liability of either party: (a) for death or personal injury caused by such party’s negligence; or (b) for fraud or fraudulent misrepresentation or (c) any other liability which cannot strictly be excluded or limited by relevant law.

14.6    Subject to the foregoing: a) Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and (b) Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to an amount equal the annual Subscription Charges paid for the 12 month period in which the claim arose.

• Customer acknowledges and accepts that (a) Supplier does not and cannot warrant or represent that the Services are compliant with any regulatory or legal requirements to which Customer may be subject, or which may be relevant to the purposes for the Services may be used, and (b) Supplier cannot be held responsible or liable for human error and negligent or fraudulent use of the Services.

15.     FREE SERVICES AND BETA SERVICES

• Customer acknowledges that all Free Services (including in this section any Beta Services (i.e. preview or early access Services)) may be subject to change at any time without notice. Customer uses Free Services entirely at its own risk. Supplier gives no warranties whatsoever, and to the extent permitted by law, accept no liabilities whatsoever regarding the Free Services and their use by Customer or any Authorised Users.
• Access to the Free Services and Beta Services (which have not been paid for) is permitted temporarily, and Supplier may suspend, withdraw, discontinue or change all or any part of the Free Services, either generally or to Customer specifically, at any time, for any reason, with or without notice. Supplier will not be liable to Customer if, for any reason, the Free Services are unavailable at any time or for any period.
• Customer acknowledges and agrees that access and use of any applicable Free Services or Beta Services Supplier offers constitutes reasonable and sufficient consideration. In return for that access, Customer is willing to adhere to the terms of the Agreement.
• As a Beta Services user, Customer may get access to information that isn’t yet publicly available about new products and features that Supplier plans to offer. Given the nature of this information, it is important that Customer keeps it confidential. Customer agrees that any Beta Service information that isn’t yet in the public domain, for example, information about a preview for a new Beta Service, is Supplier’s Confidential Information, whether or not expressly labelled as such. Customer agrees only to use such Confidential Information to test and evaluate the Beta Service (the Purpose), not for any other purpose. Customer also agrees not to disclose, publish, or share any Confidential Information with or to any third party unless it has set up the Beta Service in such a way that expressly encourages this (for example, where Customer is part of a forum Supplier has organised to trial or discuss a new Beta Service).
• Supplier’s Confidential Information relating to Beta Services does not include information that is: (a) (or becomes) publicly available without breach of the Agreement through no act or inaction on Customer’s part (for example, where a previously private Beta Service is rolled out as a regular Service by us); (b) independently developed by Customer without breach of any confidentiality obligation to Supplier or any third party; or (c) disclosed with Customer’s express written permission from Supplier. If Customer is required to disclose Confidential Information according to any order by a court or regulatory authority with jurisdiction over Supplier, it may do so provided that Supplier has been given reasonable advance written notice to object (unless prohibited by law) and the disclosure is limited to the maximum extent possible to comply with such an order of law.

 

16.     TERM AND TERMINATION

16.1    This Agreement shall commence on the Commencement Date, or the date the Proposal is agreed or signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term.

16.2    Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b)  an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; (c) the other party ceases, or threatens to cease, to trade; or (d) the other party undergoes a change in control (as defined in section 1124 of the Corporation Tax Act 2010). Supplier may also terminate the Agreement for cause on thirty (30) days’ notice if Supplier determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect Supplier, Supplier’s prospects, or Supplier’s customers. The Agreement may not otherwise be terminated prior to the end of the Subscription Term.

• Supplier may suspend any Authorised User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Services in a way that violates applicable laws or regulations or the terms of the Agreement, (ii) posting or uploading material that infringes or is alleged to infringe on the intellectual property rights of any person or relevant law, or (iii) to protect the integrity, operability, and security of the Subscription Services. Supplier may, without notice, review, edit and delete any Customer Data that Supplier has reason to determine in good faith violates the Agreement (including the EULA), provided that the parties acknowledge and agree that Supplier has no duty to, and shall not, pre-screen, control, monitor or edit Customer Data. Supplier will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Subscription Services.

16.4    The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish the Agreement to continue beyond the Initial Subscription Term or the then current Renewal Period, such notice to expire no later than 30 days prior to the end of the Initial Subscription Term or then current Renewal Period.

• On expiry or termination of the Agreement for any reason: (a) all licences granted under the Agreement shall immediately terminate, even if no expiration date is specified in the Proposal provided by Supplier; (b) each party shall return and make no further use of any Confidential Information belonging to the other party; and (c) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 8, 9, 10, 11, 12, 1, 14, 16.5, 16.6 and 17) or implicitly surviving termination, shall not be affected or prejudiced; and (d) subject to payment of a fee where applicable, Supplier will make reasonable efforts to provide Customer with a copy of its lawful, non-infringing Customer Data held in its or its Authorised Users’ accounts upon request, provided that Customer makes this request within 90 days of termination. Otherwise, Supplier will retain and use Customer Data as necessary to comply with its legal obligations, resolve disputes, and enforce Supplier’s agreements (and as further set out in Supplier’s Privacy Policy), but barring legal requirements, Supplier will delete all Customer Data within its control within the periods specified and subject to any limitations set out within the Supplier’s Privacy Policy. Supplier does not guarantee that any Customer Data can be recovered once this Agreement is terminated and any Authorised User Accounts closed.

16.6    Where Customer validly and lawfully terminates in accordance with clause 16.2(a) Supplier shall within 20 Business Days reimburse to Customer the Unused Portion of any Subscription Charges or other charges paid by Customer.

17.     GENERAL

17.1    Supplier shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration. Supplier shall not be responsible for the failure of any third party systems or platforms with which the Subscription Services interact.

17.2    A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.3    Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

17.4    If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.5    The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to their subject matter. Supplier’s obligations are not contingent on the delivery of any future functionality or features of the Subscription Services or dependent on any oral or written public comments made by Supplier regarding the Subscription Services’ future functionality or features.

17.6    Customer shall not, without the prior written consent of Supplier (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Supplier shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of Customer but providing notice of any assignment or transfer. Supplier may also appoint a suitably qualified sub-contractor to perform or provide certain Services on its behalf. Customer will continue to be liable to pay Supplier any fees due under the Agreement and shall not be liable directly for any of the subcontractor’s fees or expenses. Supplier shall remain responsible for the performance by its sub-contractor of any sub-contracted Services and shall not sub-contract the Subscription Services in their entirety.

17.7    The provisions of clause 11 notwithstanding, Supplier shall be free to use Customer’s company or organisation name and logo to identify Customer as a customer or Supplier in promotional materials or on its website without prior written consent. Customer may revoke this permission by notifying Supplier in writing to stop using its name or logo in any particular context, and Supplier shall comply with this request from the date of the notice, provided that it will have no obligation to remove or recall any use or distribution of the promotional materials before the date of the notice.

17.8    Nothing in the 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).

17.9    Notwithstanding any other provisions of the Agreement, nothing in the Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it.

17.10  Any notice required or permitted to be given under the Agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in the Agreement or such other address as either party may notify in writing to the other from time to time for this purpose. It may also, in the case of notice by Supplier only, be generally notified to Customers via their account, or notified by way of email to the email address Supplier has on account for a given Customer.  Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post. In the case of notice served by posting on the Customer’s account or by email, the notice shall be deemed given at the time such upload goes live onto the website or at the time of transmission of the email (respectively).

17.11  The construction, validity and performance of the Agreement shall be governed by the laws of Northern Ireland, and the parties submit any dispute regarding the construction, validity performance of the Agreement, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of Northern Ireland.

17.12  The Proposal may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid Proposal (in counterparts or otherwise) by facsimile or electronic transmission, or its signature via DocuSign or other EIDAS compliant signature platform, or the Customer’s confirmation by email of its agreement to the terms of a valid Proposal, shall be sufficient to bind the parties to the terms and conditions of the Agreement.

• All Professional Services and Support, the Agreement and any correspondence between the parties regarding the Agreement’s subject matter shall be exclusively in the English language.
• Supplier might make versions of the Agreement available in languages other than English. If Supplier does, the English version of the Agreement will govern Supplier’s relationship. The translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

17.15  Unless otherwise stated in these General Terms, no amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The above notwithstanding, Supplier may, acting in its sole discretion, amend these General Terms from time to time and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. If Customer objects to any change the change shall not take effect (in relation to that Customer only) until the expiry of the then current Initial Subscription Term or Renewal Period (prior to which the Customer will have had an option under clause 16.4 to elect not to renew the Agreement into such subsequent term), and the version of the General Terms applicable to Customer until that point shall be the version applicable immediately prior to the latest update. Every time Supplier enters into a new Proposal with any Customer, the terms applying to the Agreement between the Parties shall be as outlined in the relevant version of these General Terms in force at the time of the signing of the relevant Proposal.