PLEASE READ THESE TERMS CAREFULLY BEFORE ORDERING ANY SOFTWARE FROM THIS WEBSITE. BY CLICKING ON THE ‘ACCEPT AND SIGN’ BUTTON TO COMPLETE AN ORDER FORM YOU AGREE TO THE TERMS OF THIS LICENCE, WHICH WILL BIND YOU. THE TERMS INCLUDE LIMITATIONS ON OUR LIABILITY (SEE CLAUSE 13).
These Terms and Conditions ("Conditions") apply between you, the individual, firm or company who submits an order for the Software, and is named as the customer in the Order Form (the "Customer" or "you")and Direct Software Limited, a company registered under the laws of Scotland with registration number SC586179 (the "Supplier" or referred to as "us/we/our").
Our VAT number is 314508427, and you can contact us at 53 Bothwell Street, Glasgow, Scotland, G2 6TS and by email to firstname.lastname@example.org .
1.1. The definitions and rules of interpretation in this clause apply in these terms.
"Affiliate" Affiliates means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Your Affiliates may use the license granted hereunder;
"Authorised Users" those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 5.2.4;
"Back-Up Policy"means the Supplier's back up policy as provided to the Customer from time to time, whether via the Platform or otherwise;
"Business Day" a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
"Confidential Information" information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14.5 or clause 14.6;
"Contract" means the contract between you and us for the provision of the Software and the Services, which consists of your Order and these Conditions; any applicable Product Addendum, the Data Processing Addendum, and the Order Form.
"Customer" means the customer as named in the Order Confirmation;
"Customer Data" the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
"Data Processing Addendum" or "DPA" means the terms of the data processing addendum, at Schedule 1 of these terms;
"Deliverables" means the content of all data, analyses and statistics provided from time to time as part of the Services, as described in the Documentation;
"Documentation" the document made available to the Customer by the Supplier via the Order Form or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
"Effective Date" the date of issue of the Order Confirmation;
"Fees" means the fees for each Software Tier and for each Seat as set out in the Order Form subject to variation in accordance with these Conditions;
"Heightened Cybersecurity Requirements" any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time;
"Initial Subscription Term" the initial term of the contract, as set out in the Order Confirmation, which runs from the Effective Date, or from expiry of the Pilot Term (if relevant);
"Normal Business Hours" 9.00 am to 5.30 pm local UK time, each Business Day.
"Order" means the Customer's order for the Software, submitted via the Order Form;
"Order Confirmation" means Supplier's written confirmation of the Order demonstrated via acceptance of the Order Form;
"Pilot Term" means, where stated in the Order Form, the trial or pilot phase lasting for the listed period.
"Platform" Means https://allegrow.directsoftwareltd.com/
"Renewal Period" the period described in clause 17.1.
"Seats" means the number of "seats" purchased by the Customer pursuant to clause 2, each granting rights of access for one individual, named, Authorised User, to access the Platform and the Services;
"Services" the subscription services provided by the Supplier to the Customer under this agreement via https://allegrow.directsoftwareltd.com/ or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
"Software" the online software applications provided by the Supplier as part of the Services.
"Software Tier" means the tier of the Software, as described on the Platform and in the Documentation, and selected by the Customer in the Order;
"Subscription Term" has the meaning given in clause 2.7 (being the Pilot Term, Initial Subscription Term together with any subsequent Renewal Periods).
"Support Services Policy" the Supplier's policy for providing support in relation to the Services as made available on customer request a website address as may be notified to the Customer from time to time;
"Third Party Terms" any and all terms and conditions which are applicable to your use of the Services from time to time, which we make available to you;
"User" means an individual authorized by You to use the Services, Software, and Documentation, for whom You have purchased a subscription or to whom You have supplied a user identification and password. User(s) may only include Your employees, consultants, and contractors. You may not include your customers as resale of our product is prohibited by this agreement;
"User Subscriptions" the user subscriptions purchased by the Customer pursuant to clause 12.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement;
"Virus" any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
"Vulnerability" a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term "Vulnerabilities" shall be construed accordingly.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Contract.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.7. A reference to "writing" or"written" excludes faxes but includes e-mail.
2.1. The contract between us comes into effect and these Conditions become binding when you complete an Order Form.
2.2. You will be entitled to place an Order by ticking a box or singing an order form (or something similar) via the Platform or our electronic signature application. This process will require you to accept these Conditions. By ticking this box or signing an order form you are agreeing to pay the Fees, and you agree to these Conditions.
2.3. If you are placing an Order on behalf of a company or other legal entity, any acceptance of these terms will be considered a representation by you that you have the authority to bind such entity to these terms and the Contract, in which case the terms “Customer”, “you” or “your”shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions and the Contract overall, you may not proceed and we will be unable to provide our Services to you.
2.4. If we accept your Order, we will issue a written order confirmation in respect of it, at which point a contract exists between us for your use of the Platform.
2.5. When placing an Order, you must confirm the number of Seats you want to purchase, and the relevant Software Tier you want to subscribe for. All Seats must be at the same Software Tier.
2.6. Subject to you purchasing the Seats in accordance with these Conditions, and payment of the Fees and compliance at all times with these Conditions, we grant you a non-exclusive, non-transferable right, without the right to grant sub licences, to permit your Authorised Users to use the Seats, the Services, the Deliverables and the Documentation during the Subscription Term solely for your internal business operations.
2.7. This contract shall, unless otherwise terminated as provided in this contract, commence on the Effective Date and shall continue for the following period:
2.7.1. where the Order Confirmation includes a Pilot Term, the agreement shall continue for the Pilot Term, and shall then automatically renew for the Initial Subscription Term, unless you notify us in writing, at least 30 days before the end of the Pilot Term that you wish to cancel, in which case this agreement shall terminate upon the expiry of the Pilot Term; and
2.7.2. where there is no Pilot Term, or where the agreement has renewed pursuant to clause 2.7.1, the agreement shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a "Renewal Period"), unless:
2.7.3. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period.
and the Pilot Term, Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
2.8. The rights provided under this clause are granted to you only being the Customer named in the Order, and shall not be considered granted to any of your subsidiary or holding companies.
2.9. Direct Software may modify these terms from time to time, and the modified version will form part of the Contract. Direct Software will post the most up-to-date version on its website or send the agreement directly to you via email. Your continued use of the Services and Software following modification to the updated terms and conditions constitutes your consent to be bound by the same.
3.1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 4.4 and clause 10.1, the restrictions set out in this clause 5 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
3.2. In relation to the Authorised Users, the Customer undertakes that:
3.2.1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
3.2.2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to accessor use the Services and/or Documentation;
3.2.3. each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than once per year and that each Authorised User shall keep their password confidential;
3.2.4. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier immediately at any time or times;
3.2.5. it shall permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this contract. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.2.6. if any of the audits referred to in clause 3.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
3.2.7. if any of the audits referred to in clause 3.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices as at the date of the relevant audit.
3.3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2. facilitates illegal activity;
3.3.3. depicts sexually explicit images;
3.3.4. promotes unlawful violence;
3.3.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6. is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
3.4. The Customer shall not:
3.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
126.96.36.199. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
188.8.131.52. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.4.3. use the Services and/or Documentation to provide services to third parties; or
3.4.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or other wise make the Services and/or Documentation available to any third party except the Authorised Users, or
3.4.5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation; or
3.4.6. introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
3.5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and / or theDocumentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.7. The Customer is responsible for ensuring that all Authorised Users comply with the terms of this clause 3, and the remainder of the contract.
3.8. In the event that the Customer becomes aware of any infringement of these terms by an Authorised User, it will notify the Supplier, and the Supplier will be entitled to terminate or suspend that user's account.
4.1. Subject to clause 6.3and clause 6.4, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
4.2. You may, at any time, upgrade Your Direct Software account seats. This can be done by notifying the Supplier in writing. The change will take effect immediately upon the Supplier issuing a completed Order Form. You will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. The amount due and owing for the upgraded account type will be reduced by the amount you have already paid for the applicable Term.
4.3. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 30 days of its approval of the Customer's request.
4.4. If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
5.1. The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
5.2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
5.2.1. planned maintenance carried out
5.2.2. unscheduled maintenance performed outside Normal Business Hours.
5.3. The Supplier will, as part of the Services provide the Customer with the Supplier's standard customer support services during Normal Business Hours in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.
5.4. During the Term (as defined herein), Direct Software may update or modify the Services or Software or provide alternative Services or Software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third party program. Direct Software’s updates or modifications to the Services or Software or provisions of alternative Services or Software will not materially reduce the level of performance, functionality, security, or availability of the Services or Software during the Term.
6.1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and any input Data which is personal and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2. You hereby grant to us a perpetual, non-exclusive, transferable, irrevocable worldwide, sub-licensable licence to host the Customer Data and use it to provide the Services and Deliverables; to access, view and manipulate the Customer Data and use the Customer Data for the purpose of providing other users of the Software or any other third parties, whether on commercial or non-commercial terms, with anonymised Customer Data, for the purpose of creation by us or by that third party of reports, benchmarking information, and other analyses based on the anonymised CustomerData.
6.4. The provisions of the Data Processing Addendum shall apply.
7.1. The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. This includes processing of payments through our "Payment Processor".
8.1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
8.2. The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
8.3. The Supplier:
8.3.1. does not warrant that:
184.108.40.206. the Customer's use of the Services will be uninterrupted or error-free; or
220.127.116.11. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
18.104.22.168. the Software or the Services will be free from Vulnerabilities; or
22.214.171.124. the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
8.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.4. This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
8.5. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
9.1. The Customer shall:
9.1.1. provide the Supplier with:
126.96.36.199. all necessary co-operation in relation to this agreement; and
188.8.131.52. all necessary access to such information as maybe required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
9.1.2. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
9.1.3. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.4. ensure that the Authorised Users use theServices and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
9.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
9.1.6. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
9.1.7. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
10.1. The Customer shall pay the Fees to the Supplier for the User Subscriptions in accordance with this clause 10.
10.2. When completing your Order, you will be required to provide us with valid, up-to-date and complete billing details and complete contact details and you hereby authorise us to bill such bank account /credit card / debit card details with immediate effect for the Fees in the intervals set out in the Order Confirmation. In the absence of any intervals specified in the Order Confirmation, the Fees are payable in advance for each of the Initial Term and each Renewal Term, and payment will be taken immediately on renewal.
10.3. We may use a third party payment processor("Payment Processor") to invoice you through a payment account, which is linked to your account on the Platform. Where you set up a payment account with the Payment Processor, this is subject to Third Party Terms.
10.4. If we have not received payment by the due date for payment, and without prejudice to any of our other rights and remedies we may, without liability to you, disable your passwords, accounts and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6% over the then current base lending rate of the Bank of England base rate, from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5. All amounts and fees are payable in pounds sterling, are non-cancellable and non-refundable and are exclusive of value added tax, which shall (where relevant and subject to a valid VAT invoice) be added at the appropriate rate.
10.6. We shall be entitled to increase the Fees in respect of your then existing subscription no more than once in each calendar year, upon giving you at least 90 days' prior notice.
11.1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
11.2. The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.3. You must use the latest version of the Software and accept all updates to the Software. We do not customise the Software to specific customers.
11.4. Your licence under these Conditions is not exclusive. We may perform services for your competitors or for other parties whose interests may conflict with yours. We will comply with our obligation sunder condition 12 (Confidentiality).
12.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
12.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2. was in the other party's lawful possession before the disclosure;
12.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2. Subject to clause 12.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
12.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
12.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5. The Customer acknowledges that details of theServices, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
12.6. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7. No party shall make, or permit any person to make, any public announcement concerning this agreement (other than the fair use of the users name and logo described below) without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. The user hereby authorises Direct Software to use the users name and logo for its marketing efforts unless and until such authorisation is revoked in writing.
12.8. The above provisions of this clause 12 shall survive termination of this agreement, however arising.
13.1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
13.1.1. the Customer is given prompt notice of any such claim;
13.1.2. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
13.1.3. the Customer is given sole authority to defend or settle the claim.
13.2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
13.2.1. the Supplier is given prompt notice of any such claim;
13.2.2. the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
13.2.3. the Supplier is given sole authority to defend or settle the claim.
13.3. In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
13.4.1. a modification of the Services or Documentation by anyone other than the Supplier; or
13.4.2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
13.4.3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13.5. The foregoing and clause 14.3.2 state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
14.1. Except as expressly and specifically provided in these terms:
14.1.1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any Customer Data or any other information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
14.1.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
14.1.3. the Services and the Documentation are provided to the Customer on an "as is" basis.
14.2. Nothing in this agreement excludes the liability of the Supplier:
14.2.1. for death or personal injury caused by the Supplier's negligence; or
14.2.2. for fraud or fraudulent misrepresentation.
14.3. Subject to clause 14.1and clause 14.2:
14.3.1. the Supplier shall not be liable whether in tort(including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
14.3.2. the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 13.2),tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
15.1. Without affecting any other right or remedy available to it, either party may terminate this contract with immediate effect by giving written notice to the other party if:
15.1.1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
15.1.2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
15.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections123(1)(e) or 123(2) of the Insolvency Act 1986;
15.1.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.5. a petition is filed, a notice is given, are solution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme fora solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
15.1.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
15.1.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.1.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
15.1.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.3to clause 15.1.9 (inclusive);
15.1.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2. On termination of this agreement for any reason:
15.2.1. all licences granted under this agreement shall immediately terminate
15.2.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
15.2.3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination(whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
15.2.4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
16.1. Force Majeure. We will have no liability to you under the Contract if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport or telecommunications network, hack or attack on the Platform including a distributed denial of service attack or man in the middle attack, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or epidemic, or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
16.2. Variation. Unless explicitly stated otherwise in your Order Form modifications made to these terms by Direct Software from time to time will form part of the contract and your acceptance of the new terms will be indicated by your continued use of the Services.
16.3. Announcements. No party shall make, or permit any person to make, any public announcement concerning this agreement (other than the fair use of the users name and logo described below) without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange),any court or other authority of competent jurisdiction. The user hereby authorises Direct Software to use the users name and logo for its marketing efforts unless and until such authorisation is revoked in writing.
16.4. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5. Rights and remedies. Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
16.6. Severance. If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.7. Entire Agreement. The Contract constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the subject matter it covers. We both acknowledge and agree that in entering into the Contract neither of us relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in this Contract.
16.8. Assignment. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any your rights or obligations under the Contract. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.9. No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between us, or authorise either of us to act as agent for the other, and neither of us shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.10. Third party rights. The Contract does not confer any rights on any person or party (other than each of us and, where applicable, each of our successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.11. Notices. Any notice required to be given under this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the addresses set out for each of us in the Order Confirmation, or by email to the email addresses set out in the Order Confirmation, or such other address as may have been notified for such purposes in accordance with this condition. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received 24 hours from the date of sending, unless such time is not in business hours, in which case receipt shall be deemed at 9 am on the next Business Day).
16.12. Governing law and Jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. We both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
1.1 This DPA sets out the parties’ respective obligations and all other terms governing the parties’
Processing of Personal Data in connection with the Agreement.
2 Definitions and Interpretation
2.1 Capitalised terms used but not defined in this DPA shall have the meaning set forth in
2.2 The following terms have the following meanings when used in this DPA:
"Controller" has the meaning given to that term in Data Protection Law;
"Data Protection Law"means any laws or regulations that apply from time to time to the Processing of Personal Data by either Party under this Agreement and to include the EU Data Protection Directive 95/46/EC, the EU Privacy & Electronic Communications Directive 2002/58/EC, Regulation (EU) 2016/679 (if and from the date that it enters into force in the United Kingdom), all national implementing legislation(including the Data Protection Act 2018) and subordinate legislation in the United Kingdom and any applicable decisions and guidance made under them;
"Data Subject" means an individual who is the subject of any of the Disclosed Data;
"Data Subject Request"means a written request of You by or on behalf of a Data Subject to exercise any rights conferred by Data Protection Law;
"Disclosed Data" means the Personal Data disclosed to Direct Software by or on behalf of You in connection with the Purpose, comprising: email addresses; first names and last names which you import to the system. Direct Software also processes on Your behalf any other Personal Data you choose to import on your prospective customers in order for you to incorporate these details into a campaign. Direct Software do not process sensitive Personal Data, and will refuse to incorporate any sensitive information into a campaign;
“European Economic Area” means the member states of the European Economic Area, from time to time, and for the purposes of this Agreement will include the United Kingdom notwithstanding any departure of the United Kingdom from the European Economic Area;
"Personal Data" and"Processing" each have the meanings given to them in Data ProtectionLaw and "Process" and any other tense or part of that verb will be interpreted accordingly;
"Processor" has the meaning given to that term in Data Protection Law;
"Purpose" means the provision by Direct Software of the Services under this Agreement; and
"Sub-Processor" has the meaning given to that term in Clause 6.1 below.
2.3 Where any expressions defined in this Agreement by reference to a particular Data Protection Law and such Data Protection Law is amended, extended, applied, consolidated or re-enacted such that the relevant expression is no longer used, the expressions shall be interpreted to refer to the terms used within the Data Protection Law as amended, extended, applied, consolidated or re-enacted as most closely relate to the meaning of those expressions prior to the amendment, extension, application, consolidated or re-enacted of such Data Protection Law.
3 Your Obligations
3.1 You and Direct Software acknowledge that, for the purposes of Data Protection Law, You are the Controller and Direct Software is the Processor of any Disclosed Data. Each party will comply with its obligations under Data Protection Law.
3.2 You warrant and represent that the Processing of the Disclosed Data instructed by You under this Agreement is lawful. If You or Your Users do not comply with Data ProtectionLaw in connection with your use of the Software and Services, then that will be a material breach of this Agreement and your right to use may be suspended and terminated by Direct Software.
3.3 You warrant and represent that You will be solely responsible for You and Your Users’ own compliance with Data Protection Laws while using Direct Software services and systems.
3.4 You agree that You are responsible for ensuring that the security of the Services is appropriate forYour intended use and the storage, hosting, or processing of Personal Data.
4 Obligations of Direct Software
4.1 Direct Software will:
(a) Process the Disclosed Data only to the extent, and in such a manner, as is necessary for the Purpose, subject to and in accordance with Your express written instructions from time to time. If Direct Software considers that any instruction from You contravenes Data Protection Law, Direct Software will notify You, giving reasonable details;
(b) in accordance with Direct Software’s obligations under Data Protection Law, implement appropriate technical and organisational measures so as to ensure an appropriate level of security is adopted to mitigate the risks associated with the Processing of such Disclosed Data;
(c) ensure that the Disclosed Data is processed only by Affiliates, employees, contractors or other personnel that are subject to an appropriate duty of confidentiality; and
(d) not transfer any of the Disclosed Data outside the European Economic Area, except upon and in accordance with the express written instructions or agreement in writing ofYou.
4.2 At Your cost and expense Direct Software will:
(a) promptly comply with any request from You requiring Direct Software to update or otherwise amend, transfer, delete or destroy the Disclosed Data, provided that Direct Software will not be in breach of any other obligation under this Agreement to the extent that Direct Software cannot perform that obligation as a result of its compliance with this Clause 5.2(a);
(b) assist You to the extent reasonably required in responding to any relevant Data Subject Request; and Data requests. Direct Software will comply with all requests with regards to the treatment or access to your data;
(c) without prejudice to Clauses5.2(a) and 5.2(b), assist You to the extent that such assistance is necessary to enable Your compliance with its obligations under Data Protection Law in relation to the Processing of the Disclosed Data by Direct Software under thisAgreement, such assistance having regard to the nature of the processing and the information available to Direct Software; and
(d) subject to compliance with Direct Software’s relevant policies and procedures and upon reasonable notice permit You have a reasonable right of audit in relation to Direct Software’s records and procedures relating to the Processing of Disclosed Data provided that Direct Software will not be obliged to disclose any information which is subject to third party confidentiality undertakings and such right of audit shall not be exercised more than once in any 12 month period (other than where required by a regulator).
in each case as is reasonably necessary to enable You to demonstrate Your compliance with Data Protection Law in connection with this Agreement.
5.1 You agree that Direct Software may deliver the Services or Software to You with the assistance of its Affiliates, licensors, and service providers in connection with the Processing of the Disclosed Data (each a “Sub-Processor”). Direct Software shall maintain a record of any Sub-Processors that are utilised or otherwise contemplated by Direct Software from time to time and shall impose obligations on that Sub-Processor substantially equivalent to those applying to Direct Software under this Clause 6. You authorise the use of the following as aSub-Processor:
(a) any Affiliate of Direct Software;
(b) any such Processors as contemplated by that record as at the date of this
(c) any other Sub-Processors utilised by Direct Software from time to time,
provided that where there is an addition or replacement of any Sub-Processor, Direct Software shall inform You in advance of any such intended changes. If You, acting reasonably, object in writing to such addition or replacement, the parties shall discuss in good faith Your concerns and Direct Software shall use reasonable efforts to make a change to the affected Services or to propose a commercially reasonable change that avoids the need to utilise that Sub-Processor. If Direct Software is unable to implement such a change within 60 days of receipt of Your objection, then You acknowledge that its sole remedy is to terminate this Agreement (in respect of those affected Services only) on not less than 30 days’ notice in writing.
6 Obligations on Termination
6.1 Except to the extent that Direct Software is required by law to retain any copies of any Disclosed Data, upon the expiry or termination of this Agreement Direct Software will deliver to You or destroy and/or permanently delete from its information technology systems all copies of any Disclosed Data in its possession. If You require Direct Software to extract and/or transfer to You any Disclosed Data then an administration fee may apply.
6.2 Nothing in this Agreement relieves either party of its own direct responsibilities and liabilities under Data Protection Law.