Our Terms of Service is a contract between you (the Customer) and us (myDATA3) describing the services we will provide to you, how we will work together, and other aspects of our business relationship.
By using our product, you are agreeing to these terms.
We periodically update these terms. If you have a myDATA3 subscription, we will let you know when we do via an email or in-platform notification.
1. DEFINITIONS and INTERPRETATION
1.1 The following definitions and rules of interpretation in this clause apply in this Agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) 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.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
2. USE OF SERVICES
2.1.1 Subject to payment of the relevant Subscription Fee, and the terms and conditions of this Agreement, we hereby grant you, and your Affiliates, a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit your Users to use the Subscription Services as described in the Order, during the Subscription Term solely for your internal business operations.
2.1.2 Your Affiliates may access and use the Subscription Service purchased under the Order; provided that, all such access, use and receipt by your Affiliates is subject to and in compliance with the Agreement and you shall at all times remain liable for your Affiliates’ compliance with the Agreement.
2.1.3 In relation to the Users, you undertake that:
(a)you will not allow or suffer any User Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Subscription Services;
(b) each User shall keep a secure password for their use of the Subscription Services, that such password shall be changed frequently and that each User shall keep their password confidential;
(c) you shall maintain a written, up to date list of current Users and provide such list us immediately upon request;
(d) you shall permit us or our designated auditors to audit the Subscription Services in order to establish the name and password of each User and your data processing facilities to audit compliance with this Agreement at any time.
(e) if any of the audits referred to in clause 2.1.3 (d) reveal (i) that any password has been provided to any individual who is not an User, then without prejudice to our other rights, you shall promptly disable such passwords and you shall not issue any new passwords to any such individual; and (ii) that you have underpaid Subscription Fees, then without prejudice to our other rights, you shall pay us an amount equal to such underpayment within 3 Business Days of the date of the relevant audit.
2.1.4 You shall not access, store, distribute or transmit any Viruses, or any material during the use of the Subscription Services that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property; and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause 2.1.4.
2.1.5 You shall not (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between us and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
(b) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation; or (c) use the Subscription Services and/or Documentation to provide services to third parties; or (d) subject to clause 10.9, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except the Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation, other than as provided under this clause 2; (f) introduce or permit the introduction of, any Virus into our network and information systems; or (g) access the Subscription Service other than through our Platform.
2.1.6 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, promptly notify us.
2.1.7 The rights provided under this clause 2 are granted to you and your Affiliates only.
2.2.1 Subject to clause 2.2.2, you may at any time during the Subscription Term, increase the level of your Subscription Service to give you access to increased features and additional User Subscriptions. We shall grant access to the Subscription Services and the Documentation to such additional Users in accordance with the maximum permitted number as stated in the Order relevant to the level of Subscription Service purchased.
2.2.2 If you wish to increase the level of the Subscription Service at any time during the Subscription Term, you shall notify us be placing an upgrade Order through our Platform, and the Subscription Term shall be extended to the expiry of the new Initial Term as stated on the Order.
2.3 Service Uptime Commitment
2.3.1 We shall use commercially reasonable endeavours to make the Subscription Services available 24 hours a day; except for; (a) planned maintenance carried out during the maintenance window of 5pm to 9am UK time; and (b) unscheduled maintenance performed outside of Normal Business Hours (where possible) provided that we have used reasonable endeavours to give you at least 2 hours Normal Business Hours’ notice in advance.
2.3.2 We will as part of the Subscription Services and at no additional cost to the Customer provide you with our standard customer support services during Normal Business Hours in accordance with the our Support Services Policy in effect at the time that the Subscription Services are being provided. We may amend our Support Services Policy at any time in our sole and absolute discretion from time to time.
2.3.3 You must be 18 years of age or older to use the Subscription Service.
We may modify the Subscription Service from time to time, including by adding or deleting features and functions, to improve your experience.
This Agreement shall not prevent myDATA3 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.
2.6 Customer Support
We will provide customer support, during Normal Business Hours, on a best endeavour basis.
2.7 Customer Responsibilities
2.7.1 You shall:
(a) provide us with (i) all necessary co-operation in relation to this Agreement; (ii) all necessary access to such information as may be required by myDATA3 in order to provide the Subscription Services, including but not limited to Customer Data;
(b) without affecting your other obligations under this Agreement, comply with all applicable laws and regulations with respect to your activities under this Agreement;
(c) carry out all other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use the Subscription Services in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for us and our contractors and agents to perform their obligations under this Agreement, including without limitation the Subscription Services;
(f) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
(g) 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 our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
3.1 Subscription Fees
3.1.1 You shall pay the Subscription Fees to myDATA3 for the Subscription Services in accordance with this clause 3 and the Order.
3.1.2 All Subscription Fees are payable (a) in advance; (b) are non-refundable and non-cancellable in their entirety, except as expressly stated in this Agreement; (c) payable in pounds sterling.
3.1.3 The Subscription Fee will remain fixed during the Initial Term of your subscription – this is either for the current month (if paying monthly) or for the current year (if paying annually).
3.2 Fee Adjustments at Renewal
Upon expiry of the Initial Term or Renewal Term, we may increase your fees up to our then-current list price set out on our Platform. If this increase applies to you, we will notify you at least thirty (30) days in advance of your Renewal Term and the increased fees will apply at the start of the next Renewal Term. If you do not agree to this increase, either you or we can choose to terminate your subscription at the end of the Initial Term of Renewal Term (as applicable) by giving the notice required in the ‘Notice of Non-Renewal’ section below.
3.3 Payment by Credit Card
If you are paying by credit card, you shall on the Effective Date, provide us with valid up to date and complete credit card details, and any other relevant valid and complete contact and billing details, and you shall (a) on the Effective Date authorize us to charge your credit card or bank account for all Subscription Fees payable during the Initial Term; (b) on the expiry of the Initial Term (or each Renewal Term as applicable); and (c) authorise us to use a third party payment processor to process payments, and consent to the disclosure of your payment information to such third party.
3.4 Payment Against Invoice
If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Initial Term and each subsequent Renewal Term and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order.
3.5 Payment Information
You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on the Platform within your myDATA3 account.
All fees are exclusive of VAT, or local taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income. All fees are exclusive of any VAT and you represent that you are registered for VAT purposes in the United Kingdom. At our request, you will provide us with the VAT registration number under which you are registered. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged.
4. TERM AND TERMINATION
4.1 Term and Renewal
The Initial Term shall be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the Renewal Term, unless otherwise terminated in accordance with this clause 4.
4.2 Notice of Non-Renewal
Unless otherwise specified in your Order, to prevent automatic renewal of your subscription, you or we must give written notice of non-renewal with at least 30 (thirty) days’ notice prior to the end of the Initial Term or Renewal Term as applicable.
4.3 Early Cancellation
You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the applicable Term.
4.4 Termination for Cause
Either party may terminate this Agreement for cause, as to any or all Subscription Services: (a) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period (non-payment shall constitute material breach); or (b) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
4.5.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Subscription Services without notice for use of the Subscription Service in a way that violates any applicable laws or the terms of this Agreement. We may, without notice, review and delete any Customer Data that we determine in good faith violate this Agreement provided that, we have no duty (unless applicable laws or regulations provide otherwise) to pre-screen, control, monitor or edit your Customer Data.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may (a) suspend your access to any or all of the Subscription Services ten (10) days after such notice; and / or (b) charge you interest which shall accrue on a daily basis on such due amounts at an annual rate of 8% if the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm
If your website, or use of, the Subscription Service:
(a) is being subjected to denial of service attacks or other disruptive activity;
(b) is being used to engage in denial of service attacks or other disruptive activity;
(c) is creating a security vulnerability for the Subscription Service or others;
(d) is consuming excessive bandwidth; or
(e) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.5.4 Suspension and Termination of Free Services
We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.6 Effect of Termination or Expiration
4.6.1 If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause.
4.6.2 You will continue to be subject to this Agreement for as long as you have access to a myDATA3 account.
4.6.3 Upon termination or expiration of this Agreement, all licences granted under this Agreement shall immediately terminate, and you shall immediately stop all use of the Subscription Services, Platform and Documentation, and you shall return and make no further use of any property or Documentation and other items (and all copies of them) belonging to us.
4.6.4 We may destroy or otherwise dispose of any of the Customer Data in our possession unless we receive, no later than ten (10) days after the effective date of the termination of this Agreement, a written request of the then most recent back-up of the Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within thirty (30) days’ receipt of such a written request, provided that you have, at that time, paid all Subscription Fees and other charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data.
4.6.5 If you terminate this Agreement due to our cause as stated in clause 4.4, we will promptly refund any prepaid but unused Subscription Fees covering use of the Subscription Service after termination.
4.6.6 If we terminate this Agreement to your cause as stated in clause 4.4, or if you terminate for convenience, you will promptly pay all unpaid Subscription Fees due through the end of the applicable Subscription Term. Fees are otherwise non-refundable.
4.6.7 We shall retain all myDATA3 Data for as long as we determine post termination of this Agreement.
5.1 Proprietary Rights
5.1.1 You own and retain all rights to the Customer Data and you shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. This Agreement does not grant us any ownership rights to Customer Data, other than as expressly set out herein.
5.1.2 You grant a licence to us and our licensors to use the Customer Data only as necessary to provide the Subscription Service to you and as otherwise permitted by this Agreement. If you are using the Subscription Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.1.3 We shall own and retain all rights to the myDATA3 Data which results from our analysis of yourCustomer Data, and we shall retain all such myDATA3 Data following termination of this Agreement, for our own business purposes to be used as we see fit.
5.2 Limits on myDATA3
We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data to provide the Subscription Services to you, in accordance with the terms of this Agreement.
5.3 Data Practices
We monitor use of the Subscription Services by all of our customers and use the information gathered in an aggregate and anonymized manner. We will use Customer Data in an anonymized, aggregated manner for benchmarking and data analytics.
5.4 Protection of Customer Data
5.4.1 For the purposes of this clause 5.4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
5.4.2 Both you and we shall comply with all applicable requirements of Applicable Data Protection Laws. This clause 5.4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
5.4.3 We have determined, and you agree that, for the purposes of Applicable Data Protection Laws:
(a) We shall act as controller of the personal data set out in Part 1 of Schedule 1;
(b) We shall process the personal data set out in Part 2 of Schedule 1, as a processor on your behalf;
5.4.4 Should the determination in clause 5.4.3 change, then we shall make any changes which are necessary to this clause 5.4 or the related schedules.
5.4.6 Without prejudice to the generality of clause 5.4.2, you shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the myDATA3 Personal Data and Customer Personal Data to us and lawful collection of the same by us, for the duration and purposes of this Agreement.
5.4.7 In relation to the Customer Personal Data, Part 2 of Schedule 1 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
5.4.8 Without prejudice to the generality of clause 5.4.2 we shall, in relation to Customer Personal Data:
(a) process that Customer Personal Data only on your documented instructions which shall be provided in accordance with this Agreement and your instructions on the Platform, unless we are required by Applicable Data Protection Laws to otherwise process that Customer Personal Data. Where we are relying on Applicable Data Protection Laws as the basis for processing Customer Personal Data, we shall notify you of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit us from so notifying you on important grounds of public interest. We shall inform you if, in our opinion, any of your instructions infringe Applicable Data Protection Laws;
(b) implement the technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which you confirm are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by us to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist you insofar as is possible (taking into account the nature of the processing and the information available to us), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the you without undue delay on becoming aware of a Personal Data breach involving the Customer Personal Data;
(f) at your written direction, delete or return Customer Personal Data and copies thereof on termination of the Agreement unless we are required by Applicable Data Protection Laws to continue to process that Customer Personal Data. For the purposes of this clause 5.4.8 (f) Customer Personal Data shall be considered deleted where it is put beyond further use by us, and this clause 5.4.8 (f) shall not apply to myDATA3 Personal Data, or myDATA3 Data; and
(g) maintain records to demonstrate its compliance with this clause 5.4.
5.4.9 You hereby provide your prior, general authorisation for us to:
(a) appoint processors to process the Customer Personal Data, provided that we (i) shall ensure that the terms on which we appoint such processors comply with Applicable Data Protection Laws, and are consistent with the commitments provided by us under this clause 5.4; (ii) shall remain responsible for the acts and omission of any such processor; and (iii) shall inform you of any intended changes concerning the addition or replacement of the processors, thereby giving you the opportunity to object to such changes provided that if you object to the changes and cannot demonstrate, to our reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, you shall indemnify the us for any losses, damages, costs (including legal fees) and expenses suffered by us in accommodating the objection.
(b) transfer Customer Personal Data outside of the UK as required for us to provide the Subscription Services to you under this Agreement, provided that we shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, you shall promptly comply with any reasonable request of ours, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
5.4.10 We may, at any time revise this clause 5.4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
6. INTELLECTUAL PROPERTY
6.1 This is an Agreement for access to the Platform and use of the Subscription Service, and you are not granted a license to any software by this Agreement, except as expressly set out herein.
6.2 You acknowledge and agree that myDATA3 and / or our licensors own all intellectual property rights in the Subscription Services, the Platform and the Documentation. Except as expressly set out herein, this Agreement does not grant you any rights to, under or in, any patents copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered) or any other rights or licences in respect of the Subscription Services, the Platform or the Documentation.
6.3 You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the myDATA3 Content, Documentation, Platform, the Subscription Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at data-cubed.co.uk.
6.4 We encourage all customers to comment on the Subscription Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service without payment or attribution to you.
6.5 We confirm that we have all the rights in relation to the Subscription Services, the Platform and the Documentation that are necessary to grant all the rights we purports to grant under, and in accordance with, the terms of this Agreement.
7.1 Each party may be given access to Confidential Information from the other in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that (a) is or becomes publicly known other than through any act or omission of the party that received it; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.2 Subject to clause 7.4, 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.
7.3 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.
7.4 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 7.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
7.5 You acknowledge that details of the Subscription Services and the results of any performance tests of the same constitute myDATA3 Confidential Information.
7.6 We acknowledge that the Customer Data is Confidential Information which belongs to you.
7.7 You grant us the right to add your name and company logo to our customer list and website. To object to this use, please confirm to us in writing.
7.8 The above provisions of this clause 7 shall survive termination of this Agreement, however arising.
8.1 You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any claim, suit, action, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (each, an “Action“) brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) to the extent that such Action is based upon or arises out of or in connection with (a) your use of the Subscription Services, the Platform or the Documentation; (b) unauthorized or illegal use of the Subscription Service by you or your Affiliates; (c) your or your Affiliates’ non-compliance with or breach of this Agreement; (d) your, your Affiliates’ use, or our use of Third-Party Products in connection with this Agreement; (e) the unauthorized use of the Subscription Service by any other person using your User information.
8.2 In the event of any Action arising as per clause 8.1, we will (a) notify you in writing within thirty (30) days of our becoming aware of any such claim; (b) give you sole control of the defence or settlement of such a claim; and (c) provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defence or settlement of the claim, subject to the fact that you shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
9. DISCLAIMERS; LIMITATION OF LIABILITY
9.1 Disclaimer of Warranties
9.1.1 WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICES, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, DOCUMENTATION, OR PLATFORM, FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, PLATFORM AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
9.1.2 We do not warrant that (a) the Subscription Services Platform or the Documentation will be uninterrupted or error-free; (b) that the Subscription Services, Platform, Documentation and/or the information obtained by you through the Subscription Services will meet your requirements; or (c) the Platform or the Subscription Services will be free from Viruses; (d) the Platform, Documentation or Subscription Services will comply with any Heightened Cybersecurity Requirements.
9.1.3 We shall not be 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 you acknowledge that the Subscription Services, Platform and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.1.4 You assume sole responsibility for results obtained from your use of the Subscription Services, the Platform and the Documentation, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you, or any actions taken by us at your direction.
9.2 No Indirect Damages
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
9.3 Limitation of Liability
9.3.1 NOTHING IN THIS AGREEMENT EXCLUDES THE LIABILITY OF myDATA3 (A) FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; OR (B) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
9.3.2 SUBJECT TO CLAUSE 9.3.1 AND EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, YOUR LIABILITY UNDER APPLICABLE DATA PROTECTION LAWS AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED (100) BRITISH POUNDS.
9.4 Third Party Products
9.5 Agreement to Liability Limit
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
10.1 Amendment; No Waiver.
We may update and change any part or all of these Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees’ section above.) If we update or change these Terms of Service, the updated Customer Terms of Service will be sent to you. The updated Terms of Service will become effective and binding on the next Business Day after it is posted. When we change these Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Terms of Service periodically.
If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
10.2 Force Majeure
We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement, 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 the workforce of myDATA3”or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, epidemic, pandemic (including COVID 19 even if this was foreseeable as at the Effective Date) civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
10.3 Actions Permitted
Except for Actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
10.4 Relationship of the Parties
You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
10.5 Compliance with Laws
We will comply with all United Kingdom laws (where applicable) in our provision of the Subscription Services, and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Services by prohibited countries or individuals.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
To myDATA3: Notices shall be required to be sent to email@example.com
To you: your address and email address as provided in your account on the Platform. You must keep all of your account information current.
10.8 Entire Agreement
10.8.1 This Agreement constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
10.8.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
10.8.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10.8.4 Nothing in this clause shall limit or exclude any liability for fraud.
You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any myDATA3 Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
10.10 No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement pursuant to the Contract (Rights of Third Parties) Act 1999.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. The Customer further warrants and represents that it has the authority to procure its Affiliates compliance with the terms of this Agreement.
During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers, liability insurance with sufficient coverage and minimum limits of liability.
10.13.1 In the event of a conflict between these terms and conditions and an Order, the terms of the Order shall control, but only as to that Order.
10.13.2 In the event of a conflict between these terms and conditions and the schedules, the main body of the terms and conditions shall prevail to the extent of the inconsistency only.
10.14 GOVERNING LAW
10.14.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 – Data Processing
Role of the Parties
Part 1 – Where we act as a controller
Part 2 – Where we act as a Processor
In relation to the processing of the Customer Personal Data
PARTICULARS OF PROCESSING
Within the Platform and the third party providers to the Platform only in relation to Subscription Services.
Acting solely as a processor.
1.3 PURPOSE OF PROCESSING
Only as is necessary to provide the Subscription Services as set out in the Agreement.
1.4 DURATION OF THE PROCESSING
For the duration of the Agreement.
2. TYPES OF PERSONAL DATA
Customer Personal Data.
3. CATEGORIES OF DATA SUBJECT
Client data and employee data of the Customer.