Master Subscription Agreement (Terms & Conditions)
Last updated: August 1st, 2025
Cloud4J LLC, MIRAGE COMPUTER SYSTEMS GMBH, UNARIC GMBH, PAYONOMY LIMITED, UNARIC HOLDING LIMITED, UNARIC INC., AND UNARIC LIMITED
This Privacy Notice for Unaric Holding Limited, Unaric Software Limited, Unaric GmbH, Unaric Inc, Unaric Limited ("we," "us," or "our"), describes how and why we might access, collect, store, use, and/or share ("process") your personal information when you use our services ("Services"), including when you:
- Visit our website at https://www.unaric.com/, or any website of ours that links to this Privacy Notice
- Engage with us in other related ways, including any sales, marketing, or events
Questions or concerns? Reading this Privacy Notice will help you understand your privacy rights and choices. We are responsible for making decisions about how your personal information is processed. If you do not agree with our policies and practices, please do not use our Services. If you still have any questions or concerns, please contact us at privacy@unaric.com.
TABLE OF CONTENTS
2. FREE TRIAL AND FREE SERVICES
4. CUSTOMER RESPONSIBILITIES/USE OF SERVICES
6. SERVICE LEVEL AGREEMENT (SLA)
7. DATA PROTECTION AND SECURITY
8. NON-COMPANY PRODUCTS AND SERVICES, THIRD-PARTY PRODUCTS AND THIRD-PARTY CONTENT
10. PROPRIETARY RIGHTS AND LICENCES
12. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF COMPANY’S SERVICES. IF CUSTOMER REGISTERS FOR A FREE TRIAL FOR COMPANY’S SERVICES ORFOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSOGOVERN THAT FREE TRIAL OR THOSE FREE SERVICES UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE ORDER FORM, OR DOCUMENTATION. BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE; BYEXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR BY USING SUCH SERVICES (E.G., FOR FREE SERVICES), CUSTOMER AGREES TO THE TERMS OFTHIS AGREEMENT. BY GIVING CONSENT WHERE INDICATED, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTOOD, AND AGREED TO THE TERMS SET FORTH IN THIS AGREEMENT, AND CUSTOMER UNDERSTANDS THAT WHEN CUSTOMER GIVES CONSENT CUSTOMER IS CREATING A BINDING CONTRACT BETWEEN CUSTOMER AND COMPANY.
IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.
Customer may not access the Services if Customer is Company’s direct competitor, except withCompany’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Important Notice regarding Changes
PLEASE NOTE THAT COMPANY RESERVES THE RIGHT TO AND MAY UPDATE OR AMEND THIS AGREEMENT FROM TIME TO TIME IN ACCORDANCE WITH SECTION 16.1[AMENDMENTS TO AND UPDATES OF THE TERMS OF THIS AGREEMENT] BELOW.CUSTOMERS ARE ENCOURAGED TO REVIEW THIS AGREEMENT REGULARLY TO STAY INFORMED OF ANY CHANGES. THE DATE OF THE LAST UPDATE TO THIS AGREEMENT IS INDICATED ABOVE. CONTINUED ACCESS TO OR USE OF THE SERVICES AFTER ANY SUCH UPDATE CONSTITUTES ACCEPTANCE OF THE AMENDED TERMS.
1. INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
1.1 DEFINITIONS
Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by or is under common control with that party. For purposes of this definition,“control” means the direct or indirect ownership of fifty (50) or more percent (%) of the voting interests or equity interests of an entity, or the ability to otherwise direct the management or policies of an entity, whether through ownership, by contract, or otherwise.
Agreement: means this Master Service Agreement and all Schedules, Order Forms, ServiceLevel Agreements (“SLA”), and other documents expressly incorporated into it by reference.
Applicable Laws: means all applicable laws, statues, regulations from time to time in force.
Beta Services: means any Company services, features, or functionalities made available to Customer at no charge for testing, evaluation, or development purposes, and which are identified as beta, pilot, limited release, developer preview, or similar, or that are otherwise designated by Company as non-production or pre-release offerings, whether or not expressly labelled as such. Beta Services do not include Free Trials of generally available Services.
Business Day: means a day other than a Saturday, Sunday or public holiday in the jurisdiction of Company with which Customer has contracted with when banks are generally open for business between 08:00 and 17:00 local time in that jurisdiction.
Content: means information, data, reports, or other materials obtained by Company from publicly available sources or third-party content provider, and made available to Customer through the Services, Beta Services, or pursuant to an Order Form, as further described in theDocumentation. Content excludes Customer Data and any output generated solely fromCustomer’s use of Services.
Company: means the legal entity with which Customer has contracted with under thisAgreement, as identified in the applicable Order Form.
Customer: means, in the case of an individual accepting this Agreement on the individual’s own behalf, such individual; or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting this Agreement, and Affiliates of that company or entity for which an Order Forms has been executed.
Customer Data: means all electronic data, content, and information (including Personal Data)that Customer or its Users upload, submit, store or transmit in or through the Services.
Documentation: means any usage guides, help articles, feature description, onboarding materials, or technical specifications that are made available by Company to Customer in connection with the Services, whether in writing, visual, or electronic form, and as updated from time to time.
Effective Date: means the earlier of:
a) the date Customer first accepts this Agreement (whether by signature, click-through acceptance, or other legally binding method); or
b) the date of, or indicated in the first Order Form entered into under this Agreement.
Order Form: means:
a) any mutually executed ordering document referencing this Agreement and specifying the Services to be provided, including any applicable Schedule, supplements, or attachments; or
b) any online purchase, subscription, or self-service transaction completed by Customer through Company’s designated website, portal, or application, in each case including any applicable Schedule, supplements, or attachments.
Purchased Services means Services that Customer or Customer’s Affiliate purchase, as distinguished from Free Services or those provided pursuant to a Free Trial.
Service: means the products, software, subscription, and related features and services providedby Company to Customer, whether accessed via Customer’s Salesforce Org, applicable web-based portals, or another supported platform, as further described in the applicable Order Formor Documentation, including any Purchased Services and, where applicable, any Free Servicesor Trial Services made available to Customer.
Third Party Application: means any web-based, mobile, offline, or other software, process, service, or functionality that is provided and/or controlled by Customer or a third party and is designed to interoperate with the Services, whether through an application programming interface (API), embedding, data exchange, or other technical method, and whether or not such application is made available, promoted, or certified by Company.
User: means an individual who is authorised by Customer to access and use the Services onCustomer’s behalf, and who has been supplied with user credentials by Customer (or byCompany at Customer’s request). User may include, but is not limited to, Customer’s employees, consultants, contractors, or agents.
1.2 Any phrase introduced by the terms including, include, in particular, for example or any other similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 A reference to writing or written includes email.
1.4 Unless the context otherwise requires, words in the singular include the plural and in the plural
include the singular.
2. FREE TRIAL AND FREE SERVICES
2.1 Free Trial. Company may make one or more Services available to Customer on a trial basis
free of charge (the “Free Trial”). The Free Trial period will continue until the earlier of:
a) the end of the trial period communicated to Customer by Company;
b) the start date of any Purchased Services for such Services; or
c) termination of the Free Trial by Company in its sole discretion
Additional trial terms may apply as communicated by Company in writing, including on a registration page or in trial confirmation emails, and are incorporated into this Agreement by reference.
ANY CUSTOMER DATA ENTERED INTO THE SERVICES AND ANY CUSTOMISATION MADE TO THE SERVICES DURING THE FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER
(a) PURCHASES A SUBSCRIPTION TO THE SAME SERVICES
(b) PURCHASES APPLICABLE UPGRADE SERVICES, OR
(c) EXPORTS SUCH DATA BEFORE THE END OF THE FREE TRIAL.
CUSTOMERS CANNOT TRANSFER DATA OR CUSTOMISATION FROM A FREE TRIAL TO A DOWNGRADED VERSION OF THE SERVICES.
Notwithstanding any provision to the contrary in this Agreement, the Services provided under the Free Trial are provided “as is”, without any warranties, support obligations, or service level commitments of any kind.
2.2 Free Services. Company may make certain Services available to Customer at no charge (the “Free Services”). Use of Free Services is subject to this Agreement. In the event of any conflict between this section 2.2 and any other provision of this Agreement, this section 2.2 shall prevail with respect to Free Services.
Free Services may be subject to usage limits, feature restrictions, or functional restrictions, or other conditions communicated by Company, including, but not limited to Documentation, promotional materials, or onboarding communication. Use beyond such limits may require Customer to purchase additional resources or subscriptions. Company may suspend or terminate Free Services, or Customer’s access to any part of them, at any time and for any reason, including for inactivity or misuse, without notice and without liability.
Customer is solely responsible for exporting any Customer Data stored or processed within the Free Services prior to termination of access. If Company terminates Customer’s access, and unless otherwise required by applicable law, Company will provide a reasonable opportunity to retrieve Customer Data.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FREE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY. COMPANY, ITS AFFILIATES, AND LICENSORS DO NOT WARRANT THAT:
(a) THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS,
(b) THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR
(c) ANY DATA OR OUTPUT PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE OR RELIABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE TO COMPANY, ITS AFFILIATES AND LICENSORS FOR ANY DAMAGES ARISING FROM ITS USE OF FREE SERVICES, ANY BREACH OF THIS AGREEMENT, OR ANY INDEMNITY OBLIGATION RELATING TO FREE SERVICES.
3. COMPANY'S RESPONSIBILITIES
3.1 Provision of Purchased Services. Company shall:
(a) make the Services available to Customer in accordance with this Agreement, the applicable Order Form, Documentation, and applicable Schedule;
(b) provide Customer with remote standard support for the Purchased Services at no additional charge, and, if purchased separately applicable upgraded support;
(c) use commercially reasonable efforts to make the online Purchased Services available twenty-four (24) hours a day, seven (7) days a week, except for:
(i) planned downtime, for which Company shall provide advance electronic notice; and
(ii) unavailability caused by circumstances beyond Company’s reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terrorism, labour disputes (excluding those involving Company’s employees), Internet service provider failure or delays, Third Party Applications, or denial-of-service attack; and
(d) provide the Services in compliance with applicable laws and governmental regulations applicable to Company’s provision of services to its customers (without regard to Customer’s particular use of the Services) and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the applicable Order Form, Documentation and any applicable Schedule.
Company’s obligations under this section 3.1 apply only to Purchased Services and do not extend to any Free Services, Free Trial or Beta Services unless expressly stated otherwise. Service level commitments, if any, apply only to the extent set out in a separate SLA or as otherwise agreed in writing.
3.2 Licence Grant (Where Applicable): To the extent any Service includes software components or downloadable tools that are installed or accessed within Customer’s systems or environments, and unless otherwise stated in the applicable Schedule, Company grants Customer a limited, non-exclusive, non-transferable, revocable, non-sub licensable licence to access and use such components solely for Customer’s internal business operations and in accordance with this Agreement, the applicable Order Form and Documentation. This licence is granted only for the duration of the applicable subscription term and solely for use by Customer and its Users as permitted under this Agreement. For Services accessed through a web interface, Company grants Customer a limited, non-exclusive, non-transferable, revocable right to access and use such Services through such interface solely in accordance with this Agreement, the applicable Order Form and Documentation. All rights not expressly granted under this Agreement are reserved by Company, as further stated in Section 10.1. For the avoidance of doubt, this licence applies even if the licensed components are used within a third party-platform or environment. Customer remains responsible for ensuring such use complies with this Agreement the applicable Order Form, Documentation and applicable Schedule and does not conflict with any third-party terms.
3.3 Company Personnel: Company shall be responsible for the performance of its personnel, including employees and contractors, in connection with the Services and for ensuring their compliance with Company’s obligations under this Agreement, except as otherwise expressly stated in this Agreement.
3.4 Beta Services: From time to time, Company may make Beta Services available to Customer at no charge for evaluation purposes. Customer may choose to access or use Beta Services at its sole discretion.
Beta Services are provided solely for internal testing, development, or evaluation and are not intended for production use. Beta Services are provided “as is,” are not supported, are not subject to any service level or availability commitments, and may be subject to additional terms communicated by Company. Unless otherwise stated by Company, any period for Beta Services will end on the earlier of (a) one year from the start of access, (b) the date on which the relevant Beta Service is made generally available without the “beta” designation, or (c) as otherwise agreed with the Company.
Beta Services are not considered “Services” under this Agreement. However, all use restrictions, Customer obligations, and Company’s reservation of rights in relation to the Services shall apply equally to Beta Services. Company may modify or discontinue Beta Services at any time without notice and shall have no liability arising from or related to Customer’s use of Beta Services.
3.5 Updates and Modifications: Company may make updates, improvements, or modifications to the Services from time to time, including the addition or removal of features or functionalities. Such changes may be made without notice, provided they do not materially degrade the core functionality of the applicable Purchased Service. Any such modification shall be deemed part of the Services and subject to the terms of this Agreement. Nothing in this section obligates Company to develop or release any specific features or functionality, whether referenced in marketing, public statements or future roadmaps.
3.6 Customisation and Configuration Services: Certain Services may be eligible for customisation or configuration work, subject to Company’s sole discretion. Any such work must be agreed in writing in a separate statement of work (“SOW”) describing the scope of the work. No work shall commence unless and until the SOW is signed by both parties.
Unless expressly agreed otherwise, any customisation or configuration work is provided “as is” and solely for use with the Services under this Agreement. All intellectual property rights in such work shall remain with Company, and Sections 10 (Proprietary Rights and Licences) and 14 (Limitation of Liability) of this Agreement shall apply to all such services and deliverables accordingly. Customer receives a non-exclusive, non-transferable licence to use the deliverables for its internal business purposes in connection with the Services. Fees for customisation and configuration work shall be set out in the applicable Order Form.
In addition to the warranties set forth in this Agreement Company warrants that any customisation and configuration work delivered under an SOW will materially conform to the specifications in that SOW for a period of thirty (30) days following delivery (the “Service- specific Warranty Period”). Customer’s sole and exclusive remedy for breach of this warranty is re-performance of the non-conforming portion of the work. This warranty does not apply to modifications made by Customer or third parties. Outside the Service-specific Warranty Period, Company may, in its sole discretion, but is not obliged to, provide support for such customisation and configuration work on a goodwill basis, without warranty or commitment.
4. CUSTOMER RESPONSIBILITIES/USE OF SERVICES
4.1 Subscriptions: Unless otherwise provided in the applicable Order Form or Documentation:
(a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form;
(b) additional subscriptions may be added during a subscription term at the applicable per-unit pricing at the time the additional subscription is added, prorated for the remainder of that term; and
(c) added subscriptions will terminate on the same date as the underlying subscriptions.
Customer acknowledges and agrees that its purchases are not contingent on the delivery of any future functionality or features, or on any oral or written public comments made by Company regarding future functionality or features. The “subscription term” for any Purchased Service is defined in section 15 (Term and Termination) and as set forth in the applicable Order Form.
4.2 Usage Limits: Services and Content are subject to the usage limits specified in the applicable Order Form and the Documentation. If Customer exceeds a contractual usage limit, Company may work with Customer to reduce usage to conform to that limit. If Customer is unable or unwilling to comply, Customer shall promptly execute an Order Form for additional quantities and/or pay any invoice for excess usage in accordance with section 9 (Fees and Payment).
4.3 Customer Responsibilities: Customer shall:
(a) be responsible for its Users’ compliance with this Agreement, the Documentation,
and the applicable Order Form;
(b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquires Customer Data (including consent), Customer’s use of Customer Data with the Services, and any interoperation with Third-Party Applications, and ensure that all Customer Data is complete, accurate, and kept up to date at all times;
(c) ensure that its arrangements with Users make clear that Customer’s IT systems, including the Services provided by Company, are for business use only. Customer shall ensure that Users do not have an expectation of personal privacy in data stored in or processed using such systems. This provision does not limit any rights or obligations under applicable data protection or privacy laws, which remain in full force;
(d) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content and notify Company promptly of any such unauthorised access or use;
(e) use Services and Content only in accordance with this Agreement, the Documentation, the applicable Order Form, and all applicable laws and regulations;
(f) keep the applicable Services updated, if, as and when updates and modifications are made available;
(g) back up and maintain copies of any Customer Data it stores, inputs, or accesses in connection with the Services. Company disclaims any liability for loss of Customer Data not attributable to a breach of its obligations under this Agreement; and
(h) comply with the terms of service of any Third-Party Applications with which Customer uses the Services or Content.
Any use by Customer or its Users in breach of the foregoing that, in Company’s judgment, threatens the security, integrity, or availability of the Services may result in suspension of access, provided Company uses commercially reasonable efforts to give Customer notice and an opportunity to remedy the violation before suspension.
4.4 Usage Restrictions: Customer shall not, except as expressly permitted by this Agreement, the applicable Order Form, or the Documentation:
(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Services, Content, or Documentation available to any third party other than authorised Users;
(b) modify, copy, or create derivative works based on the Services, Content, or Documentation;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services, except to the extent permitted by applicable law;
(d) use the Services or any Third-Party Application to store or transmit, malicious code, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(e) interfere with or disrupt the integrity, performance, or availability of any Service or third-party data contained therein;
(f) attempt to gain unauthorised access to any Service or Content or its related systems or networks;
(g) permit direct or indirect access to, or use of, any Service or Content in a manner that circumvents a contractual usage limit or to access or use any of Company’s intellectual property except as permitted under this Agreement, the applicable Order Form, or the Documentation;
(h) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or for its own internal business purposes or as permitted in the Documentation;
(i) access or use the Services to build or support, directly or indirectly, a product or service that is competitive with the Services; or
(j) use the Services, Content, or Documentation in violation of applicable law, including export control and sanction laws.
Customer acknowledges and agrees that any usage or functionality limitations specified in the applicable Order Form, Documentation, or this Agreement shall be honoured and complied with, regardless of whether the Services technically enforce or validate such limitations.
Customer acknowledges and agrees that Company, unless prohibited by applicable law, may implement and use technological features or controls to monitor, limit, or restrict Customers access to or use of the Services as necessary to ensure compliance with this Agreement. These technological measures may include, without limitation, licence keys, usage monitoring tools, and access restrictions.
Company, unless prohibited by applicable law, reserves the right to audit, upon reasonable prior notice and during normal business hours, Customer’s use of the Services to verify compliance with the licence restrictions and other terms of this Agreement. Any such audit will be conducted in a manner that minimizes disruption to Customer’s business operations.
4.5 Removal of Content and Third-Party Applications: If Company is required by a third-party rights holder or by law to remove Content, or if Company learns that Content provided to Customer may violate applicable law or third-party rights, Company may notify Customer and Customer will promptly remove such Content from its systems. If Customer fails to do so, Company may disable access to the affected Content or Service until the issue is resolved.
If Company receives notice that a Third-Party Application used by Customer may violate applicable law or third-party rights, Company may notify Customer and Customer will promptly disable or modify that Third-Party Application to resolve the issue. If Customer does not take the required action, Company may disable the applicable Service feature or Third- Party Application until the violation is resolved. Upon request, Customer shall confirm in writing that it has taken these actions, and Company may provide such confirmation to any third-party claimant or governmental authority.
5. SUPPORT AND MAINTENANCE
5.1 Support Requests: In the event of a malfunction of the Services, Customer may submit a support request on Company’s website or via any other channel expressly provided by Company (e.g., email, portal, or phone).
5.2 Standard Support: Company will use commercially reasonable efforts to respond to support requests on Business Days and during regular business hours, as defined hereinabove. Certain Services may be subject to specific support level tiers as described in the applicable Schedule. Service specific support level tiers apply only to those Services expressly identified in the applicable Schedule and shall not apply to any other Services. Any Product specific support level tiers are incorporated into this Agreement solely for the applicable Services.
5.3 Premium Support: Certain Services may be eligible for premium or extended support services for an additional fee as set forth in the applicable Order Form. Any such premium support services must be prepaid or billed pursuant to the terms of the applicable Order Form.
6. SERVICE LEVEL AGREEMENT
Certain Services may be subject to service level commitments as described in the applicable SLA, set forth in the applicable Schedule or as otherwise provided by Company in writing. The SLA applies only to those Services expressly identified in it and shall not apply to any other Services. Any SLA is incorporated into this Agreement solely for the applicable Services.
Unless otherwise agreed in writing, no service level commitments or service credits apply to Free Trials, Free Services, Beta Services, or to any Services not expressly covered by the SLA.
7. DATA PROTECTION AND SECURITY
Each party shall comply with applicable data protection and privacy laws in connection with its performance under this Agreement. Company shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, as further described in the overview of technical and organisational measures referenced in the Data Protection Addendum (“DPA”) [available at ...]. Information about Company’s general data handling practices is described in the Privacy Policy, available at [insert link]. To the extent that Company processes Personal Data (as defined in the DPA) contained in Customer Data on behalf of Customer in connection with the provision of the Services (unless prohibited by applicable law or expressly stated otherwise, excluding Free Trials, Free Services, and Beta Services), the terms of the DPA shall apply and are incorporated by reference.
BY ACCESSING A COMPANY WEBSITE OR USING THE SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND IS ACQUAINTED WITH THE PRIVACY POLICY AVAILABLE AT THE LINK PROVIDED HEREIN FURTHER ABOVE. BY INSTALLING AND/OR PURCHASING AND/OR USING THE SERVICES AND UPLOADING ANY PERSONAL DATA TO THE SERVICES, CUSTOMER CONCLUDES THE DATA PROCESSING ADDENDUM (“DPA”) BETWEEN CUSTOMER AS THE DATA CONTROLLER IN THE MEANING OF THE GENERAL DATA PROTECTION REGULATION (EU) (2016/679), UK GDPR AND THE UK DATA PROTECTION ACT 2018 (DPA 2018) AND APPLICABLE DATA PROTECTION LEGISLATION, AND COMPANY AS THE DATA PROCESSOR.
8. NON-COMPANY PRODUCTS AND SERVICES, THIRD-PARTY PRODUCTS, AND THIRD-PARTY CONTENT
8.1 Third-Party Products and Services: Company or third parties may make available third-party products or services, including Third-Party Applications, implementation services, or other consulting offerings. Where Customer purchases such products or services from Company, they may be subject to separate terms and conditions of the applicable third-party provider, as may be specified in the Order Form or otherwise communicated by Company. In such cases, the third-party provider’s terms shall apply between Customer and Company solely in respect of the relevant third-party offering.
Where Customer obtains third-party products or services directly from the third-party provider, Company does not warrant, support, or assume any liability in connection with such offerings, whether or not they are designated by Company as “certified,” “approved,” or similar, unless expressly stated otherwise in the applicable Order Form. Customer acknowledges that Customer is solely responsible for entering into Customer’s own agreements with applicable third party providers to license and/or purchase any third-party products and for providing, at Customers own expense, all network access, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services. Customer acknowledges that certain Services may depend on and/or operate on Company’s or third-party platforms or environments (the “Platforms”). Company does not warrant the availability, functionality, or performance of the applicable Services if such Platforms are no longer available to or used by Customer, or if changes are made to such Platforms that affect Services interoperability. Company shall not be responsible for any degradation or unavailability of the Services resulting from such Platform changes or discontinuation.
8.2 Use of Third-Party Applications/Third-Party Services/Customer Data: If Customer chooses to use a Third-Party Application or engages a third-party service or consulting provider in connection with the Services, Customer authorises Company to permit such third-party (including the provider of the Third-Party Application) to access and process Customer Data to the extent necessary for the operation, support, or integration of such third-party offering with the Services.
Unless otherwise expressly agreed in writing, Company is not responsible for any access to, disclosure, modification, or deletion of Customer Data resulting from such access by a third- party provider or its application.
Customer is solely responsible for assessing the security, privacy, and compliance obligations associated with the use of any such third-party offerings.
8.3 Interoperation with Third-Party Applications: Certain features of the Services may be designed to interoperate with Third-Party Applications. To use such features, Customer may be required to obtain access to the relevant Third-Party Application from its provider and may be required to grant Company access to Customer’s account(s) with such provider.
Company does not guarantee the continued availability or compatibility of any Third-Party Application or related Service feature and may discontinue such interoperation without liability, refund, or credit if, for example, the provider of a Third-Party Application ceases to make it available for interoperation in a manner acceptable to Company.
This does not apply where Customer has purchased the Third-Party Application directly from Company and availability has been contractually agreed for a specific duration.
8.4 Customer Indemnity: Customer shall indemnify and hold harmless Company, its Affiliates, its licensors, and personnel from and against any claims, losses, or damages arising out of or in connection with
(a) Customer’s use of a Third-Party Application or other third-party service in connection with the Services, or
(b) access to Customer Data by a third party at Customer’s request or direction, except to the extent caused by Company’s breach of this Agreement.
8.5 Third Party Content: Any information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of Company. The applicable Service may contain links to websites operated by other parties. Company provides these links to other websites as a convenience, and use of these sites is at Customer’s own risk. The linked sites are not under Company’s control and Company is not responsible for the content available on the other sites. Such links do not imply Company’s endorsement of information or material on any other website, and we disclaim all liability with regard to Customer’s access to and use of such linked websites. Any concerns regarding any such third-party service or resource, or any link thereto, should be directed to the particular service or resource. Company recommends that Customer review the terms of use and privacy policies located on third party sites.
9. FEES AND PAYMENT
9.1 Fees: Customer shall pay all fees specified in the applicable Order Form, which is incorporated
into this Agreement by reference and governs the fees for the applicable Service.
Fees are based on the Services and/or Content purchased for the applicable term, and not on actual usage. Unless otherwise agreed in writing or as expressly provided in this Agreement, all fees are non-cancellable and non-refundable.
Any increase in subscription volume or scope of Services during the applicable term (whether by additional users, expanded functionality, or other measurable metrics) shall be charged at the then-current rates, prorated for the remainder of the subscription term unless otherwise stated in the Order Form. Decreases in volume or term during the Initial Term or any Renewal Term are not permitted unless expressly agreed in the applicable Order Form.
9.2 Invoicing, Payment/Credit Card Authorisation: Unless otherwise stated in the applicable Order Form:
(a) subscription-based Services are payable in advance; and
(b) product-specific fees and any Services billed on a time-and-materials basis shall be invoiced electronically and monthly in arrears and are due within thirty (30) days of the invoice date.
Payment shall be made by credit card or such other method as specified in the applicable Order Form. All amounts are payable in full without set-off, deduction, or withholding, except as required by applicable law.
If Customer elects to pay by credit card, Customer authorises Company (or its third-party payment processor) to charge such card for all applicable fees in accordance with the payment schedule specified in the applicable Order Form, including initial purchases, monthly product- specific fees, renewals, and any upgrades Customer elects during the term. Customer is responsible for ensuring that its payment information is current, complete, accurate and valid.
9.3 Late Payment/Suspension: If any undisputed fees are not paid when due, Company may charge interest on the overdue amount at the rate of one [1] percent per month or the maximum rate permitted by applicable law, if lower, from the due date until the actual payment.
If payment is made by invoice, Company may suspend Customer’s access to the Services upon ten [10] days’ written notice if any undisputed amounts remain unpaid after the due date, until such amounts are paid in full.
If payment is made by credit card and the charge is declined, Company may suspend access to the Services immediately or upon short notice, and shall notify Customer of such suspension without delay.
Company shall not suspend the Services while a payment dispute is being resolved in good faith.
9.4 Taxes and Payment Charges: Unless otherwise required by applicable law, all fees are exclusive of any applicable taxes, levies, duties, or similar governmental assessments, including value-added tax (VAT), sales tax, use tax, goods and services tax (GST) or withholding tax.
Customer is responsible for all such charges associated with its purchases under this Agreement, other than taxes based on Company’s income, property, or employment.
In addition, Customer shall bear all costs associated with making payments under this Agreement, including (where applicable) bank transfer charges, wire fees, currency conversion costs, and payment processing fees.
9.5 Payment Disputes: Customer must notify Company in writing of any good faith dispute regarding an invoice or fee within thirty (30) days of the invoice date, providing reasonable details of the nature of the dispute.
Customers may withhold payment only of the disputed portion of the applicable invoice during the resolution of such dispute. All undisputed amounts shall remain payable in accordance with this Agreement.
The parties shall work together in good faith to resolve any such dispute promptly.
9.6 Future Functionality: Customer’s payment obligations are not contingent upon delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
10. PROPRIETARY RIGHTS AND LICENCES
10.1 Reservation of Rights: Except for the limited rights expressly granted to Customer under this Agreement, all intellectual property rights, title, and interest in and to the Services, including but not limited to, all software, technology, Documentation, content, and any modifications or enhancements thereto and any trademarks, service marks, trade names, logos, designs, and look-and-feel related to the Services, are and shall remain the exclusive property of Company, its Affiliates, or their respective licensors and Content providers. This includes all user interfaces, source and object code, website content, Documentation, marketing materials, and other materials provided by Company through online platforms, extensions, or browser-based tools, whether or not incorporated into the Services.
No rights are granted to Customer other than as expressly set forth in this Agreement.
10.2 Access and Use of Content: Customer shall have the right to access and use the Content solely as permitted under this Agreement, the applicable Order Form and Documentation.
Such rights are limited to the term of the applicable subscription and are subject to any use restrictions or licensing conditions imposed by the original Content provider.
10.3 Licence to Host Customer Data and Application: Customer grants Company, its Affiliates, and applicable contractors a worldwide, royalty-free, limited-term licence to host, copy, display, and use Customer Data and use any Third-Party Applications and program code created by or for Customer using the Services and to ensure their proper operation in accordance with this Agreement.
Except for the limited rights expressly granted under this section 10.3, Company does not acquire any right, title, or interest in or to Customer Data, Third-Party Applications, or such program code.
10.4 Licence to Use Feedback: Customer grants Company and its Affiliates a worldwide, perpetual, irrevocable, and royalty-free licence to use and incorporate into their Services, the Documentation, and related products and offerings any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or Users relating to the operation of the Services.
10.5 Statistical Data Use: Company may derive statistical data from Customer Data in an aggregated and anonymized manner. Company may use and distribute such statistical data for any purpose, provided that such statistical data does not contain any Customer Data or other information that identifies Customer or its Users.
10.6 Derivative Works: For clarification, unless otherwise agreed in writing, any derivative works, modifications, configurations, or enhancements to the Services made by or on behalf of Customer shall be deemed part of the Services and shall be owned exclusively by Company, including all associated intellectual property rights.
10.7 Third-Party Components: The Services may include or interoperate with third-party software, code, or components that are subject to separate licence terms made available by the respective third party. To the extent required by those terms, such third-party components are licensed to Customer under those terms, and not under this Agreement. Company makes no representations or warranties with respect to such third-party components.
10.8 Restriction on Use: Customer’s rights to access and use the Services, Content, and Documentation are subject to the use restrictions set out in section 4. Any use of the Services in breach of those restrictions constitutes a material breach of this Agreement and may result in immediate suspension or termination of Customers rights to access and use the Services.
10.9 Revocation of Rights: All rights granted to Customer under this section 10, including any right to access and use the Services, Content, or Documentation, shall automatically terminate upon the expiration or termination of this Agreement, or the applicable Order Form. Company may also revoke such rights if Customer materially breaches this Agreement and fails to cure such breach within any applicable cure period.
10.10 Use of Documentation: Customer may access and use the Documentation solely for its internal use in connection with the Services and in accordance with this Agreement. All intellectual property rights in the Documentation remain with Company and its licensors. Customer shall not copy, distribute, modify, or make the Documentation available to any third party except as necessary to enable its authorised Users to access and use the Services.
10.11 Beta Services, Free Trial and Free Services: For the avoidance of doubt, this section 10 also applies to Customer’s use of any Beta Services, Free Trial and Free Services.
11. CONFIDENTIALITY
11.1 Confidential Information: Confidential Information means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is marked as confidential or would reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes business and marketing plans, technology and technical information, product designs, and business processes. For clarification, Customer’s Confidential Information include Customers Data; Company’s Confidential Information includes the Services, Content, Documentation, and pricing information. Confidential Information does not include any information that the Receiving Party can demonstrate:
(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(c) is received from a third party without breach of any obligation owed to the Disclosing Party, or
(d) was independently developed by the Receiving Party.
If the parties have entered into a separate non-disclosure agreement (“NDA”) the terms of this section 11 shall apply in addition to such NDA and shall not be construed to limit or override any broader protections in the NDA unless expressly stated otherwise.”
11.2 Confidentiality Obligations: The Receiving Party shall:
(a) protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature, but in no event less than a reasonable standard of care;
(b) not use any Confidential Information for any purpose outside the scope of this Agreement; and
(c) not disclose Confidential Information to any person or entity other than its employees, Affiliates, contractors, advisors, or agents who have a need to know such information for the purpose of this Agreement and who are subject to confidentiality obligations no less protective than those set out in this Agreement. The Receiving Party shall ensure that all such third parties comply with the confidentiality obligations set out in this Agreement.
Notwithstanding the foregoing, Company may disclose Confidential Information to subcontractors or third-party application provider to the extent necessary to perform Company’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
11.3 Compelled Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by applicable law, regulation, or court order, provided that the Receiving Party:
(a) gives the Disclosing Party prior notice of the compelled disclosure (to the extent permitted by applicable law);
(b) upon the written request by the Disclosing Party, provides reasonable assistance, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy; and
(c) disclose only the portion of Confidential Information that is legally required to be disclosed.
11.4 Duration and Return of Confidential Information: Each party’s obligation under this section 11 shall survive for a period of five (5) years following the termination or expiration of this Agreement or the last active Order Form entered into under this Agreement, whichever is later, except with respect to trade secrets which shall remain subject to the confidentiality obligation for so long as such information remains confidential.
Upon termination or expiration of this Agreement or the last Order Form, the Receiving Party shall, upon the Disclosing Party’s written request destroy all Confidential Information of the Disclosing Party in its possession or control, except as required by applicable law. Notwithstanding the foregoing, Confidential Information stored in backup systems shall not be required to be deleted immediately, provided such backups are kept confidential, not restored, accessed, or used for any purpose other than system integrity or disaster recovery. Such data shall be deleted in the ordinary course of backup rotation and lifecycle management.
12. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
12.1 Mutual Representations: Each party represents that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organisation, has the corporate power and authority to enter into this Agreement, and that this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms.
12.2 Company Warranties: Company warrants that, during each applicable subscription term and with respect to Purchased Services (excluding Free Trials, Free Services, and Beta Services):
(a) the Services will perform materially in accordance with the Documentation;
(b) Company maintains and will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data as described in section 7 (Data Protection and Security); and
(c) Company will not materially decrease the overall security or functionality of the Services.
12.3 Customer Representations: Customer represents that:
(a) it has all rights, consents and permissions necessary to provide Customer Data to Company and to authorise Company’s performance of the Services (including any processing by Third Party Applications or providers);
(b) it is entering into this Agreement in the course of its trade, business, or profession, and will use the Services solely for business purposes; and
(c) its use of the Services, Content, Documentation, Customer Data and any Third-Party Applications will not infringe the intellectual property or other rights of any third party or violate applicable law.
12.4 Disclaimer of Warranties: Company makes no warranties of any kind with respect to Free Services, Free Trials, or Beta Services.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12.2, COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT WARRANT THAT THE APPLICABLE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY DATA, OUTPUT, OR RESULT OBTAINED FROM THE USE OF THE SERVICES WILL BE COMPLETELY ACCURATE OR RELIABLE. ALL SERVICES AND RELATED DELIVERABLES ARE PROVIDED “AS IS“ AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
12.5 Third-Party Products and Services: Neither party makes any warranties, and each disclaims all liability, for any third-party products or services—whether acquired through Company or directly from the third-party provider—including, without limitation, Third Party Applications, implementation services, consulting, hosting, or other integrations, whether or not designated by Company as “certified,” “approved,” or similar, except to the extent expressly warranted in an applicable Order Form.
Nothing in this section 12.5 shall limit Customer’s indemnification obligations under section 13.2.
13. MUTUAL INDEMNIFICATION
13.1 Indemnification by Company: Company shall defend Customer against any claim, demand, suit, or proceeding brought by a third party alleging that Customer’s use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and shall indemnify Customer against any damages, reasonable legal fees, and costs awarded in a final judgment, or agreed in settlement with Company’s written approval, arising from such Claim Against Customer, provided that Customer:
(a) promptly notifies Company in writing of the Claim Against Customer;
(b) grants Company sole control of the defence and settlement of the claim (except that Company may not settle any claim unless it unconditionally releases Customer of all liability); and
(c) provides Company with reasonable assistance in the defence, at Company’s expense.
If Company receives notice of a potential Claim Against Customer, Company may, at its discretion and at no cost to Customer:
(a) modify the Services to avoid further infringement;
(b) obtain a license for Customer’s continued use of the Services; or
(c) terminate the affected Service upon thirty (30) days’ written notice and refund any prepaid fees for the unused portion of the applicable subscription term.
Company’s indemnity obligations do not apply to the extent the claim arises from:
(a) use or combination of the Services with software, hardware, data, or processes not provided by Company, if the claim would not have arisen but for such combination;
(b) use of the Services in breach of this Agreement, the Documentation, or an applicable Order Form;
(c) Customer’s use of Content, a Third-Party Application, or any other third-party material;
(d) Services provided free of charge, including Free Trials and Beta Services; or
(e) functionality that is generally used and accepted in standard online commerce.
13.2 Indemnification by Customer: Customer shall defend Company, its Affiliates, officers, directors, employees, attorneys, and agents against any claim, demand, suit, or proceeding brought by a third party arising from:
(a) Customer Data or Customer’s use thereof;
(b) a Third-Party Application provided, configured, or directed by Customer;
(c) the combination of such Third-Party Application with the Services; or
(d) Customer’s use of the Services or Content in breach of this Agreement, the Documentation, or any Order Form
(each, a “Claim Against Company”), and shall indemnify Company against any damages, reasonable legal fees, and costs awarded in a final judgment, or agreed in settlement with Customer’s written approval, arising from such Claim Against Company, provided that Company:
(a) promptly notifies Customer in writing of the Claim Against Company;
(b) grants Customer sole control of the defence and settlement of the claim (except that Customer may not settle any claim unless it unconditionally releases Company of all liability); and
(c) provides Customer with reasonable assistance in the defence, at Customer’s expense.
13.3 Exclusive Remedy: This section 13 states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, in respect of any third-party claim described in this section 13.
14. LIMITATION OF LIABILITY
14.1 Liability Without Limitation: Nothing in this Agreement shall exclude or limit either party’s
liability:
(a) for death or personal injury caused by negligence;
(b) for gross negligence or wilful misconduct;
(c) for fraud or fraudulent misrepresentation;
(d) under applicable mandatory product liability laws;
(e) where a defect has been maliciously concealed; or
(f) to the extent of a guarantee expressly assumed by that party.
14.2 Liability for Breach of Essential Obligations: Subject to section 14.1, each party’s liability for damages caused by a slightly negligent breach of an Essential Obligation shall be limited to the amount of foreseeable damage typical for the type of contract. A “Essential Obligation” is a contractual obligation the performance of which is essential for the proper execution of this Agreement and on which the other party may reasonably rely.
Except as provided in this section 14.2, each party shall have no liability for damages resulting from slightly negligent conduct.
14.3 Maximum Aggregate Liability: Except as otherwise provided in this section 14, the total aggregate liability of each party and its Affiliates arising out of or in connection with this Agreement shall not exceed the total fees paid by Customer (including its Affiliates, if applicable) for the Services giving rise to the claim in the twelve (12) months preceding the event giving rise to such claim.
14.4 Scope of Limitations: Subject to section 14.1, the limitations in this section shall apply to all claims for damages, including, without limitation, direct, indirect, incidental, special, punitive, consequential, or similar damages, including, without limitation, lost profits or revenues, loss of use, or similar economic loss, regardless of the legal basis, including contractual, tort, statutory, or otherwise. The same limitations shall apply to any liability of a party’s employees, agents, subcontractors, legal representatives, or corporate bodies.
14.5 Exclusions from the Maximum Aggregate Liability: The limitation in section 14.3 shall not apply to:
(a) Customer’s indemnification obligations under this Agreement;
(b) Customer’s breach of licence restrictions or use limitations under this Agreement;
(c) Customer’s misuse of the Services or unauthorised access to Customer Data; or
(d) Customer’s obligation to pay fees under an Order Form.
15. TERMS AND TERMINATION
15.1 Term: This Agreement commences on the Effective Date and shall continue in force until the expiration or termination of all Order Forms entered into under this Agreement, unless terminated earlier in accordance with the terms of this Agreement.
15.2 Term of Services and Uplift: Each Order Form shall specify the initial term applicable to the Services provided (the “Initial Term”). Unless otherwise stated in the applicable Order Form, the Services shall automatically renew for successive renewal periods of equal duration to the Initial Term (each, a “Renewal Term”), unless either party provides written notice of non- renewal at least (i) sixty (60) days before the end of the then-current term where the Initial Term exceeds three (3) months or (ii) at least thirty (30) days before the end of the then-current term where the Initial Terms is less than three months. Unless otherwise stated in the applicable Order Form, Company may increase the fees for any Renewal Term by up to five percent (5%) over the fees charged during the immediately preceding term, provided that no such increase shall take effect more than once in every twelve (12) months period. Any uplift to fees for a Renewal Term, shall be stated in the applicable invoice. Unless otherwise agreed upon in writing, Company is under no obligation to provide advance notice of such adjustment, and the continued use of the applicable Service beyond the end of the then-current term shall constitute acceptance of the adjusted fees.
15.3 Termination for Cause: Either Party may terminate this Agreement, including all active Order Forms, with immediate effect by written notice to the other party if:
(a) the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days after receiving written notice of the breach;
(b) the other party becomes insolvent, is unable to pay its debt as they fall due, enters into liquidation (except as for the purpose of a bona fide solvent restructuring), or has a receiver, administrator, or similar officer appointed over nay of its assets; or
(c) the continued performance of this Agreement would result in a violation of applicable law or regulation.
15.4 Effects of Termination: Upon termination of this Agreement or any Order Form:
(a) All rights granted to Customer under the terminated portion of the Agreement shall immediately cease, and Company may disable Customer’s access to the applicable Services;
(b) Customer shall remain liable for all fees payable under the applicable Order Form through the end of the then-current Initial Term or Renewal Term, and such fees shall become immediately due upon termination regardless of the effective date of termination;
(c) if the Agreement is terminated by Customer for Company’s material breach under section 15.3, Company shall refund any prepaid fees covering the period after the effective date of termination for the affected Services; and
(d) termination shall be without prejudice to any other rights or remedies either party may have under this Agreement or applicable law.
15.5 Surviving Provisions: The termination or expiration of this Agreement shall not affect any rights, obligations, or liabilities that have accrued prior to such termination or expiration. In addition, the following provisions shall survive the termination or expiration of this Agreement: Fees and Payment [9]; Proprietary Rights and Licences [10]; Confidentiality [11]; Representations, Warranties, Exclusive Remedies and Disclaimers [12]; Mutual Indemnification [13]; Fees and Payment [9]; Term and Termination [15]; and any other provision that by its nature is intended to survive.
16. MISCELLANEOUS
16.1 Amendments to and Updates of the terms of this Agreement:
(a) Company may amend or update the terms of this Agreement from time to time in its sole discretion. Amendments will become effective upon posting of an updated version of this Agreement at [add URL], and the “Last Updated” date above will reflect the date of the latest amendment. Customer is responsible for reviewing this Agreement periodically to stay informed of any changes. Continued access to or use of the Services after such posting shall constitute acceptance of the amended terms, subject to the limitations set out below. For the avoidance of doubt, this section 16.1(a) does not apply to Order Forms or to changes to fees, subscription terms, or renewal periods specified in an active Order Form, which may only be amended by mutual written agreement of the parties. Amended terms shall not apply to any active Order Form during its then-current term, but shall apply to any Renewal Term or new Order Form entered into after the effective date of the amendment.
(b) Amendments by Agreement: With the exception of amendments in accordance with section 16.1(a) above, no amendment or modification of this Agreement shall be effective unless it is in writing and signed by an authorised representative of each party.
16.2 Assignment: Customer shall not assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of Company, and any attempted assignment, transfer, or delegation in violation of this section 16.2 shall be null and void.
Company may assign or transfer this Agreement, without Customer’s consent
(a) to any of its Affiliates, or
(b) in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets or business related to this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns, and legal representatives.
16.3 Name Use/Publicity/Customer Lists: Customer hereby grants Company a non-exclusive, royalty-free, worldwide right and licence to use Customer’s name, logo, and a factual description of the relationship between Customer and Company in customer lists, websites, marketing materials, case studies, interviews, press releases, and conference presentations, provided that any such use is accurate and does not disclose confidential information. The parties agree that this section 16.3 shall prevail over any conflicting confidentiality obligations contained in a separate non-disclosure agreement between the parties. Customer may revoke its consent in writing at any time for future uses.
16.4 Public Communication and Website Content: Company strives to ensure that information provided on Company websites, portals, and other public-facing materials (the “Websites”) is accurate and current. However, Company makes no warranties or representations as to the accuracy, completeness, or reliability of any such information. Company reserves the right to correct errors, inaccuracies, or omissions and to update Company Websites at any time without prior notice. In the event of any inconsistencies between such public information and this Agreement, the terms of this Agreement shall prevail. Unless explicitly prohibited by applicable laws, Company will not be liable to Customer for any errors on the Website unless caused by Company’s wilful misconduct or gross negligence.
16.5 Export Compliance/Anti-Corruption: Each party shall comply with all applicable export control laws and regulations, including those of the United States, the United Kingdom, the European Union, and Germany. Each Party represents that it is not listed on any government list of prohibited or restricted parties and shall not access, use, sell or transfer the Services (or any related technology) in violation of any applicable export control laws or sanctions. Each party shall not permit access to or use of the Services in any country or region subject to comprehensive trade sanctions. Each Party shall comply with all applicable anti-corruption and anti-bribery laws. Neither party shall offer, promise, give, request, or accept any undue advantage, financial or otherwise, in connection with the negotiation, award or performance of this Agreement.
16.6 Contracting Entity/Governing Law/Jurisdiction/Venue: The governing law applicable to this Agreement, the venue for any dispute, and the courts having exclusive jurisdiction, shall be determined based on the contracting entity of Company identified in the Order Form. The applicable governing law and jurisdiction for each contracting entity of Company are set out in the table below. In each case, the parties irrevocably submit to the exclusive jurisdiction of the applicable courts specified in the table:
16.7 Injunctive Relief: Customer acknowledges that a breach of its obligations relating to confidential, intellectual property rights, or unauthorised use of the Services may cause Company irreparable harm for which monetary damages may be an inadequate remedy. Accordingly, in such cases, Company shall be entitled to seek injunctive or other equitable relief without the requirement to post bond or prove actual damages, in addition to any other remedies available at law or in equity.
16.8 Severance: If any provision or part-provision of this Agreement is held to be invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification or deletion of a provision or part-provision under this section 16.8 shall not affect the validity and enforceability of the remaining provisions of this Agreement.
16.9 No Waiver: No failure or delay by Company in exercising any right or remedy under this Agreement or by law shall operate as a waiver of that or any other right or remedy, nor shall any single or partial exercise of any right or remedy prevent or restrict any further exercise of that or any other right or remedy. A waiver of any right or remedy under this Agreement shall be effective only if given in writing and signed by the or a duly appointed representative of the Company.
16.10 Force majeure: No Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.11 Entire Agreement and Order of Precedence: This Agreement constitutes the entire Agreement between Company and Customer regarding Customer’s use of the Services and supersedes all prior and contemporaneous agreements, proposals, negotiations, discussions, understandings, and representations, whether written or oral, relating to its subject matter. Customer acknowledges that it has not relied upon any statement, representation, warranty, or promise made or given by Company or anyone on its behalf, except as expressly set out in this Agreement. Nothing in this section 16.11 shall limit or exclude any liability for fraudulent misrepresentation. The parties agree that any term or condition stated in any Customer purchase order, vendor onboarding form, or other Customer order document (excluding Order Forms) shall be void and shall have no force or effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form; and (2) this Agreement (excluding the Order Form).
16.12 Relationship of Parties: Nothing in this Agreement shall be construed as creating a partnership, joint venture, agency, fiduciary, employment, trust or other relationship between the parties beyond the contractual relationship expressly provided for in this Agreement. Neither party shall have authority to act for, bind, or make representations on behalf of the other party. Each party confirms that it is acting on its own behalf and not for the benefit of any other person. Nothing in this Agreement shall create any relationship of trust, duty, or confidence between the parties except as expressly stated.
16.13 Third Party Beneficiaries: Except as expressly provided in this Agreement, no person or entity other than the parties to this Agreement shall have any rights to enforce any of its terms. Customer agrees that no Customer Affiliate, employee, contractor, or agent shall have any rights or remedies under this Agreement. Company’s Affiliates are expressly intended third- party beneficiaries of this Agreement and shall have the right to enforce its terms against Customer.
16.14 Product Origin and Licensing: Certain Services may be developed or owned by Affiliates of Company. These Services are made available to Customer by Company under distribution or licensing arrangements with its Affiliates. For clarification, only Company is the contracting party under this Agreement, and no other Affiliate of Company shall have any obligation or liability to Customer in connection with the Services or this Agreement, except as expressly stated in section 16.13 (Third Party Beneficiaries).
16.15 Notices: Any notice or other communication required or permitted to be given under this Agreement must be in writing and shall be deemed to have been duly given:
(a) when delivered by hand (with written confirmation of receipt);
(b) when sent by nationally recognised overnight courier services (with written confirmation of receipt);
(c) when sent by registered or certified mail, return receipt requested, postage prepaid; or
(d) sent by email to the email address nominated by the relevant party from time to time.
The address to which Customer should direct notices under this Agreement, shall be determined based on the contracting entity of Company identified in the Order Form. The address for each contracting entity of Company is set out in the table below. Notices shall be deemed received:
(a) if delivered by hand on the date of delivery;
(b) if sent by courier, on the date recorded by the courier service as delivered;
(c) if sent by registered or certified mail, three [3] business days after posting; and
(d) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. Business hours shall mean 9.00am to 5.00pm on a Business Day.
16.16 Titles/Headers: The titles and headings in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.
16.17 Counterparts: This Agreement may be executed in counterparts, including electronic or scanned versions, each of which shall be deemed an original.
16.18 Incorporation of Schedules: Company may provide fee schedules, support schedules, or other schedules, specific to an individual Service, either as Exhibit to this Agreement or as attachments to an Order Form (the “Schedule”). Each Schedule is incorporated into and made part of this Agreement as if set out in full herein. To the extent of any conflict between a Schedule and this Agreement, the Schedule shall govern solely with respect to the applicable Service.
Customers are responsible for reviewing the Agreement and any applicable Schedule(s) regularly to remain informed of any changes. The date of the last update to this Agreement is set forth above. Continued access to or use of the Services following any update constitutes the Customer’s acceptance of the revised terms.
Exhibit A
Product-Specific Schedule
[.....]
The Schedule for [...] is available at [insert link].
Exhibit B
Product-Specific Schedule
[.....]
The Schedule for [...] is available at [insert link].
Exhibit C
Product-Specific Schedule
[.....]
The Schedule for [...] is available at [insert link].
