MASTER SUBSCRIPTION AGREEMENT
Note: You may not access the Services if You are Our direct competitor or you provide access for a direct competitor, except with Our prior written consent. In addition,Youmay not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on 18 April 2018. It is effective between You and Us as of the date of You accepting this Agreement.
1.1 In this Agreement, unless the context otherwise requires, the following words and expressions shall have the meanings ascribed to them below:
“Affiliate” of any person means any other person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person;
“Base Rate” means the base lending rate from time to time of the Bank of England or of such UK clearing bank as We may nominate from time to time or, in the event that the said base lending rate ceases to exist, such other rate reasonable equivalent to the said base lending rate as We may from to time to time by notice specify;
“Beta Services” has the meaning ascribed thereto in Clause 9.4;
“Business Day” means Monday through Friday, excluding public holidays in Scotland;
“Business Hours” means 9am to 5pm on a Business Day;
“Claim Against Us” has the meaning ascribed thereto in Clause 10.1;
“Confidential Information” means the terms and conditions of this Agreement and all Order Forms, as well as Our business and marketing plans, technology and technical information, product plans and designs, and business processes, and all information (whether oral, written or in any other form) of a confidential and/or commercially sensitive nature concerning Us and/or any Related Company of Ours made available or disclosed by or on behalf of a Discloser to a Recipient (whether before or after this Agreement is actually entered into), including without limitation for the purpose of or pursuant to this Agreement (and, for these purposes, Our intellectual property shall be deemed to have belonged to Us or our Licensor(s) (as the case may be) at all times), together with any information derived from such information and any analyses, compilations, studies and other material prepared by the Recipient which contain or otherwise reflect or are generated from such information, but shall not include information which:
(i) is publicly available at the time it is made available to the Recipient or subsequently becomes generally available to the public other than as a result of disclosure or any act or omission by any Recipient contrary to its obligations of confidentiality; or
(ii) was or has become available (as can be demonstrated by its written records) to the Recipient free of any restrictions as to its use or disclosure; or
(iii) the Discloser has agreed in writing not to treat as Confidential Information;
“control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) means the possession, direct or through one or more intermediaries or together with persons acting in concert (as such term is defined for the purposes of The Takeover Code), of the power to direct or cause the direction of the management or policies of any person and, without limitation, for the purposes of this Agreement, an interest in shares in the capital of a company conferring in the aggregate 50% or more of the total voting rights conferred by all the issued shares in the capital of that company shall be deemed to confer control of that company;
“Discloser” means the relevant party by or on whose behalf Confidential Information is made available or disclosed;
“Initial Term” means the initial contract term entered into as expressly agreed and set out in the Order Form;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Vastclicks” means the online application that interoperates with the Services, located at http://www.vastclicks.com or at any successor websites;
“Non-Vastclicks Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services, including but not limited to those listed on Vastclicks and those identified as or by a similar designation;
“Order Form” means the electronic forms (plans) for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto; NOTE: and by entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto; thus Order Forms shall be deemed incorporated herein by reference;
“Prescribed Rate” means 8% per annum above the Base Rate;
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, (whether accepted by any of our click-wrap agreements, signed electronically by way of our quote or traditional means);
“Recipient” means the relevant party receiving Confidential Information;
“Related Company” means a company which is a subsidiary or holding company or a subsidiary of such holding company (as the terms “subsidiary” and “holding company” are defined in Section 1159 of the Companies Act 2006);
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via the customer login link at /pricing and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” exclude Non-Vastclicks Applications;
“Usage Statistics” has the meaning ascribed thereto in Clause 2;
“User Guide” means the tour/overview for the Services, accessible via login at http://vastclicks.com/how-it-works, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide prior to purchasing Services;
“Users” means individuals who are authorised by You to use the Services according to the terms hereunder, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request and cost), including, but not limited to, Your employees, students, consultants, contractors and agents, and third parties with which You transact business;
“We,” “Us” or “Our” means Adidit Limited, a private company limited by shares incorporated in Scotland under the Companies Act 2006 on 24 August 2016 with registered company number SC543669 and having its registered office at 6.3 Turnberry House 175 West George Street, Glasgow, G2 2LB;
“You” or “Your” means you and, jointly and severally, any company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity; and
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 words and expressions defined in the Companies Act 2006 shall bear the same meanings herein;
1.2.2 reference to any statute or statutory provision includes a reference to any statute or statutory provision which amends, extends, re-enacts or replaces the same or which has been amended, extended, re-enacted or replaced by the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision whether before or after the date hereof;
1.2.3 reference to Clauses and subdivisions thereof are references to the clauses of this Agreement and subdivisions thereof;
1.2.4 a reference to the singular includes a reference to the plural and vice versa and a reference to any gender includes a reference to all other genders;
1.2.5 references to persons shall include natural persons, bodies corporate, unincorporated associations, partnerships, joint ventures, trusts or other entities or organisations of any kind and in any jurisdiction, including (without limitation) government entities (or political subdivisions or agencies or instrumentalities thereof);
1.2.6 references to any Scottish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept shall in respect of any jurisdiction other than Scotland be deemed to include what most nearly approximates in that jurisdiction to the Scottish legal term.
1.3 The headings in this Agreement are for convenience of reference only and shall not affect its validity or construction.
If You purchase Services from Us, we may (at our discretion) make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the trial period for which such Services are made available to you or (b) We notify otherwise. Additional trial terms and conditions may appear on the trial registration web page. NOTE: Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMISATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU UNDERTAKE THE TRIAL ON THIS BASIS. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMISATIONS MADE DURING THE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G. TRIALLING A LARGER USER GROUP AND THEN MOVING TO A PAID FOR SUBSCRIPTION FOR A SMALLER NUMBER OF USERS, OR IN THE CASE OF TRIALLING A SUPPLEMENTARY SERVICE, WOULD RESULT IN THE DATA BEING POTENTIALLY DELETED. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING CLAUSE 9 (WARRANTIES AND DISCLAIMERS), DURING THE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND AT YOUR OWN RISK. Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. If You are located in the United Kingdom, then during any trial period We may disclose anonymous data about Your use of the Services (“Usage Statistics”) to our service providers for the purpose of helping us improve our users’ experience with the Services, or as required by law. Any such disclosures of Usage Statistics to our service providers will not include Your identity.
2.1 One Free Trial per Orginization. We reserve the right to cancel or stop any free trial accounts if it is deemed that a free trial is being exploited by an orginization / individual on more than one occasion.
- Purchased Services
3.1 Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term, which shall include at least the Initial Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments (or otherwise) made by Us regarding future functionality or features.
3.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users (which unless so specified will be one), (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require on-going use of the Services.
- Use of the Services
4.1 Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge through Our Vastclicks email ticket system, and/or upgraded support if available and purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 7 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during non-Business Hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2 Our Protection of Your Data. We shall maintain what we deem appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Clause 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the completeness, accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use best efforts to prevent unauthorised access to or use of the Services, and notify Us forthwith of any such unauthorised access or use, and (iv) use the Services only in accordance with this Agreement, the User Guide and applicable laws and government regulations. You shall not directly or indirectly (including authorising or knowingly fail to refrain another) (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or delictual material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or their related systems or networks.
4.4 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls or messages You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide from time to time. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
- Non-Vastclicks Providers
5.1 Acquisition of Non-Vastclicks Products and Services. We or third parties may from time to time make available to You (e.g., through Vastclicks) third-party products or services, including but not limited to non-Vastclicks Applications and implementation, customization and other consulting services. Any acquisition by You of such non-Vastclicks products or services, and any exchange of data between You and any non-Vastclicks provider, is solely between You and the applicable non-Vastclicks provider. We do not warrant or support non-Vastclicks products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. Subject to Clause 5.3 (Integration with Non-Vastclicks Services), no purchase of non-Vastclicks products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
5.2 Non-Vastclicks Applications and Your Data. If You install or enable Non-Vastclicks Applications for use with Services, You acknowledge that We may allow providers of those Non-Vastclicks Applications to access Your Data as required for the interoperation of such Non-VastclicksApplications with the Services. We shall not be responsible for any disclosure, variation, modification or deletion of Your Data resulting from any such access by Non-Vastclicks Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-Vastclicks Applications for use with the Services.
5.3 Integration with Non-Vastclicks Services. The Services may contain features designed to interoperate with Non-Vastclicks Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Non-Vastclicks Applications from their providers. If the provider of any such Non-Vastclicks Application ceases to make the Non-Vastclicks Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
- Fees and Payment for Purchased Services
6.1 Fees. You shall pay all fees specified in all Order Forms hereunder forthwith on demand (or as otherwise stated). Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. You shall have no right of set off, counter claim or other right of security and insofar as they may apply by operation of law, you hereby waive same to the full extent provided by law.
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorise Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Clause 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the Prescribed Rate, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Clause 6.2 (Invoicing and Payment).
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Clause 13.2 (Manner of Giving Notice), before suspending services to You.
6.5 Payment Disputes. We shall not exercise Our rights under Clause 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added tax, assessable by any local, national, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
- Proprietary Rights
7.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest, past, present and future, in and to the Services, for Our and/or Our licensor(s) benefit (as the case may be) including all subsisting and related intellectual property rights and any derivatives, improvements, modifications, enhancements and developments of the same. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Restrictions. You shall not, directly or indirectly (including authorising or knowingly fail to refrain another), (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorised herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3 Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize and licence Us (on an irrevocable, perpetual, worldwide, royalty-free basis) to host, copy, transmit, display and adapt such applications and program code, as necessary for Us to provide the Services in accordance with this Agreement, or otherwise. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4 Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. You agree to indemnify and hold Us harmless in relation to any matter arising in connection with your data. For the avoidance of doubt, you are solely responsible for taking copies of your data and the frequency thereof.
7.5 Data identification/security. We reserve the right to use or remove, without notification, static IP/HTTPS features. You agree to indemnify and hold Us harmless in relation to any matter arising in connection with same and Your/User use of Our website/s and Services.
7.6 Suggestions. We shall have a royalty-free, worldwide, irrevocable, transferable, sub-licensable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. We (or Our nominee(s)) shall exclusively own all intellectual property rights in our expression of any such incorporated suggestion/s and you hereby waive any rights, past, present and future, that you may have in relation to the same.
8.1 Confidential Information. We agree that Your Data shall be your confidential information. Notwithstanding any provision to the contrary, You irrevocably grant us free use of Your Data as we deem fit for statistical and related purposes on the condition that we use reasonable efforts to ensure such data is anonymised.
8.2 Protection of Confidential Information. The Recipient shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Discloser in writing, to limit access to Confidential Information of the Discloser to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Recipient containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3 Compelled Disclosure. The Recipient may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Recipient gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
- Warranties and Disclaimers
9.1 Our Warranties. We warrant, subject to the limitations in clause 11, that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Clause 5.3 (Integration with Non-Vastclicks Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Clause 12.3 (Termination for Cause) and Clause 12.4 (Refund or Payment upon Termination) below.
9.2 Your Warranties. You warrant that (i) You have validly entered into this Agreement and have the legal power to do so, (ii) Your entering into this Agreement does not breach the terms of another contract, and (iii) the information provided in this Agreement, the Order Forms and Your Data generally is exclusively Yours and the uploading of same will not breach any laws.
9.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.4 Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Beta Services“). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.
10.1 Indemnification by You. You shall defend Us against any claim, demand, or legal proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us“), and shall indemnify Us for any damages, legal fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us.
- Limitation of Liability
11.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR DELICT OR OTHERWISE) SHALL EXCEED THE LESSER OF £1,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR DELICT OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER CLAUSE 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, DELICT OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Term and Termination
12.1 Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
12.2 Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 24 hours before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 7 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
12.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination. Upon any termination for cause by You, other than during the Initial Term, subject to 90 days advance notification We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term (including the Initial Term) of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Surviving Provisions. Clauses 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
- Notices, Governing Law and Jurisdiction
13.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.2 Agreement to Governing Law and Jurisdiction. Each party agrees that Scottish law shall be the applicable and exclusive governing law without regard to choice or conflicts of law rules, and to the non-exclusive jurisdiction of the Scottish courts.
- General Provisions
14.1 Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations. Each party represents that it is not named on any UK government denied-party list. You shall not permit Users to access or use Services in a U.K.-embargoed country or in violation of any U.K. export law or regulation.
14.2 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use best efforts to notify us forthwith.
14.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect
14.7 Costs. You shall pay on demand all of Our legal fees and other costs and expenses incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Clause 6.2 (Invoicing and Payment).
14.8 Assignation. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, set out the entire agreement and understanding between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Clause 14.9 shall not exclude liability for fraudulent misrepresentation.