This Agreement (The “Agreement”) is made between Curvegrid Inc. (The "Provider"), and you (The “Customer”). Each a “party” and together the “parties”.
By accepting these terms or otherwise proceeding to use the services made available via curvegrid.com, multibaas.com, or multibaas.app (together, the "website") you are agreeing to the following terms and conditions set out in this agreement governing your use of the services. If you are entering into this agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to these terms and conditions, in which case the terms "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, you must not proceed and may not use the service.
1. Definitions and construction
In this Agreement the following terms shall apply (save where the context otherwise requires):
“Acceptable Use Restrictions”
has the meaning set out in clause 5.
means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.
has the meaning set out in clause 4.
means an aspect of the Services which is labelled as being offered in a ‘beta’ state.
means the date on which the Customer accepts this Agreement by clicking to accept its terms, or otherwise continuing to access and use the Services.
means the Bribery Act 2010 (UK),the Foreign Corrupt Practices Act 1977 (USA) and all replacement and modifying legislation and regulations pertaining thereto.
means any data or content which is uploaded to, featured in, or generated by a Deployment or an Application.
means all data processed by Provider or otherwise provided to Provider pursuant hereto including, but not limited to, any Personal Data.
means such hardware and software as may be specified on the Website which the Customer is required to have in use in order to use and receive the Services to be provided in accordance with this Agreement.
shall have the meaning of ‘controller’ set out in Article 4(7) of the GDPR.
shall have the meaning of ‘processor’ set out in Article 4(8) of the GDPR.
“Data Protection Legislation”
means the GDPR and, for such time as it is in force in Japan, the Act on the Protection of Personal Information 2003, and all related legislation which may supplement, amend, implement or replace those acts and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
means an instance of the BaaS platform which may be configured by the Customer to which it is provided by way of that Deployment’s individual Deployment Account.
means the unique top-level account with which an individual Deployment is associated, and by which it may be accessed, administrated and operated by that Deployment’s Representative and/or chosen Users.
means a period during which there is total loss of the Services.
means a period of one month commencing at the end of the Initial Period or at the end of the previous Extension Period.
means the fee payable in respect of a particular Tier of service, as specified either (i) in the pricing table set out on the Website as it may be amended from time to time, or (ii) as specified in a Pricing Schedule.
means a Deployment Account which is provided to a Customer under the terms of a Tier which does not require the payment of any Fee.
means Regulation (EU) 2016/679 and/or such associated legislation as may give effect to its terms.
means a period of one month commencing on the Commencement Date.
“Intellectual Property Rights”
means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
means a calendar month and “monthly” shall be construed accordingly.
means an instance of Downtime.
has the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
means a bespoke schedule of pricing which may be agreed between Provider and Customer which specifies alternative or additional Fees, and which takes precedence over the Fees specified on the Website to the extent that the two documents conflict.
“Processing" and "Process"
have the meaning set out in Article 4(2) of the GDPR.
means an individual live session, during which an individual User accesses the Service using the unique access credentials specific to their allocated User Account.
means a period during which there is partial loss of the Services.
means, where applicable, the levels of performance to which the Services are to be provided to the Customer by Provider.
means the BaaS services provided by Provider to the Customer under the terms of this Agreement, which shall constitute the making available of the functionality of the BaaS service by way of one or more Deployments, subject to the limitations of the Tier, or Tiers, of service selected and paid for by the Customer.
means the software used by Provider to provide the Services which is either Provider’s proprietary software or third-party software licensed to Provider.
means an order placed for the Services by the Customer via the Website and accepted by Provider, which shall be associated with a particular service Tier and one or more Deployments.
means consulting, customisation and/or support services provided to a Customer by Provider’s personnel (remotely or otherwise).
means regulations introduced by Provider from time to time for the better management of the Services and which may include (but are not limited to):
means a package of services selected by the Customer which will (without limitation) determine the recurring Fee to be paid for that Subscription, the quantity of Deployments available to the Customer, and the quantity and type of Services which the Customer is entitled to receive in respect of those Deployments during the Subscription’s term. Amongst other matters a Tier may specify a particular number and/or type of User Accounts to which the Customer is entitled, as well as a defined level of Support to which that Customer is entitled.
means the effective term of this Agreement (which shall include the Initial Period and all subsequent Extension Periods).
means an individual user which accesses the Services with a unique identifier, which may be a log in name and password, a unique access or API Key, or other equivalent authentication method.
means a unique account allocated to an individual User, which enables that User to access the Services in the context of the Deployment with which that User Account is associated. User Accounts may be offered with various levels of functionality, such as by designating certain User Accounts as having ‘Administrator’ privileges and others as having lower levels of access privileges, and certain Tiers may grant access to varying quantities or particular types of User Accounts.
The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
Unless the context otherwise so requires:
references to Provider and the Customer include their permitted successors and assigns;
referreferences to any gender include all genders;ences to statutory provisions include those statutory provisions as amended or re-enacted;
words in the singular include the plural and in the plural include the singular.
In the event of any conflict between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of this Agreement shall prevail.
Holding company shall be construed as a company that owns directly or indirectly more than 50% of the issued share capital in a party and exercises effective control over such party.
Subsidiary shall be construed as a company in which more than 50% of the issued share capital is owned directly or indirectly by a party and over which it exercises effective control.
2. Provision of Services and Licences
Provider agrees with effect from the Commencement Date, in consideration of the continued timely payment of the Fee by the Customer, to supply the Services and to licence the Software on a non-exclusive basis pursuant to the terms and conditions of this Agreement.
Receipt of the Services will require the use by the Customer of the Software on a remote basis (often colloquially referred to as ‘SaaS’) accordingly the Customer’s licence to use the Software is subject to the following conditions:
Non-Exclusivity: the licence is non-exclusive and Provider shall remain entitled to grant similar or identical licences to use the Software to third parties without restriction;
Non-Transferability: save where otherwise expressly stated, the licence is non-transferable or sub-licensable, and the Customer shall not permit or purport to transfer the licence to any third party (nor offer the Software on a bureau or ‘passthrough’ basis) without first obtaining explicit written permission from Provider to do so;
Specific Purpose: the Software may only be used by the Customer in order to produce hosted applications within Deployments, save for where a subscription Tier specifically permits the use of the Software for an alternative or additional purpose;
Duration: the licence shall endure for the full Term of the Subscription in respect of which it is granted.
The Customer acknowledges that Provider may at any time, and without notice, incorporate licence management software into the Software for the purposes of ensuring that licence rights are not exceeded.
Customers may not activate or operate more than one Free Account at any time. Customer undertakes that it shall not attempt to subvert or circumvent the terms of this clause by collaborating with any other entity to use multiple Free Accounts in tandem, and accepts that Provider shall be entitled to suspend or terminate any Deployment Account which it finds in violation.
The Customer accepts that it shall in no circumstances be permitted to:
reproduce, edit, create derivative works of, sell or in any way commercially exploit any part or aspect of the Software in contravention of the purpose set out in clause 2.2.3;
outsource the Services or Software provided under this Agreement to third parties;
attempt to decompile the Software (including any underlying software or any part of it) that is used to provide the Services; and
to observe, study or test the functioning of the Software (including any underlying software or any part of it) that is used to provide the Services.
3. User Accounts
The Customer shall be allocated the number and types of User Accounts applicable to its purchased Tier of service.
In order to create a User Account the User associated with that User Account will be required to provide valid identifying information. Such information shall be specified via the Services and Users must ensure that any details which they provide are kept current and accurate at all times throughout their use of the Services.
The Customer acknowledges that each User Account may only be allocated to a single individual User. In order for Users to access the Services the Customer must purchase the appropriate number of User Accounts required and, pursuant to clause 9.4, increasing the volume of active User Accounts may increase the Fee payable in respect of the Services.
The sharing of individual User Accounts between Users is expressly prohibited.
User Accounts must be created by individual human users. Provider reserves the right to suspend or delete without notice any User Account which it considers has been created in breach of this clause 3.5.
A User Account may be operated by automated means after creation where:
the User Account is associated with a Subscription that falls within a fee paying licence Tier which permits the Customer to operate one or more automated User Accounts;
such automation does not cause (intentionally or otherwise) an undue or disproportionate burden on the system resources which underpin the Software;
such automation does not cause the relevant User Account or associated Deployment to operate in breach of the Acceptable Use Restrictions.
User Accounts may not be created or operated by any individual aged under 13 years.
The Customer may, from time to time during the Term of this Agreement allocate a User Account to a new User or transfer a User Account from one User to another (each such transfer an “Allocation”). Where the Customer wishes to allocate a User Account to a new User or transfer a User Account from one User to another, the Customer shall use the functionality provided in the Software. The Customer is not entitled to make any Allocations save for those permitted by the Software’s functionality and accepts that the making of such Allocations may cause a fee to become payable.
4. Service Functionality
The Service enables the creation and configuration of remotely hosted applications (“Applications”). The functioning of Applications is dependent upon Customer’s choices and Provider makes no warranty that any individual Application will function in any particular way or be fit for any particular purpose. Customer is solely responsible for its own configurations.
Customer shall not configure any Application in any way that causes (intentionally or otherwise) an undue or disproportionate burden on the system resources which underpin the Software. Customer accepts that Provider shall be entitled to enforce the terms of this clause 4.3 by way of introducing ‘throttling’ or similar access limitation technologies at any time.
Where Customer configures any Application, or uses any Deployment Account, in any way that causes disruption, loss or damage to other customers, then Customer shall be solely liable for the same. Customer releases Provider from any associated liability and recognises that Provider shall not, in any circumstances, be liable for the results of other customers’ use of the Services.
End-Client Facing Applications
Customer may create Applications which it chooses to make directly available to its end-clients, or which otherwise interface with its end-clients and their data. Use of Applications in this fashion is done solely at Customer’s discretion and Customer accepts sole risk and liability for any consequences of such usage.
Customer accepts that Provider shall have no liability for any loss or damage which Customer may sustain as a result of use of the Services in the fashion described in clause 4.5. Customer shall be solely liable for any claims brought against it by its end-clients.
Customer undertakes to indemnify and hold harmless Provider against any and all claims brought against Provider by Customer’s end-clients where those claims relate to an end-client’s use of (or interaction with) any Application created or hosted by Customer.
Where any aspect of the Services is offered as Beta Functionality the Customer accepts that such usage will be at its sole risk. Beta Functionality is made available for public testing and/or demonstration purposes and should not in any circumstances be relied upon for use in a production environment or for any other non-internal use.
Beta Functionality may be withdrawn or modified at any time and without notice. The fact that a feature is made available as Beta Functionality is not a warranty or guarantee that such functionality will be made available as a regular part of the Service at any point in the future.
5. Acceptable Use of the Services
As a condition of being granted access to the Services Customer undertakes:
not transmit any material, that is defamatory, unlawful, offensive or otherwise objectionable in relation to your use of the Services;
not use the Application or Services in an unlawful manner, for any unlawful purpose, or in any manner inconsistent with the terms of this Agreement, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into any Application or third-party service or operating system;
not infringe Provider’s Intellectual Property Rights or those of any third party in relation to its use of the Services;
not use the Services in a way that could damage, disable, overburden, impair or compromise Provider’s systems or security or interfere with other customers; and
not to collect, extract or harvest any information or data from the Services (or our systems more generally) or attempt to decipher any transmissions to or from the servers running any Service.
Together the conditions of use set out in this Clause 5 are referred to as the “Acceptable Use Restrictions”.
6. Content and Data
Customer shall retain sole liability for any Content which features in its Deployments and accepts that it is responsible for ensuring the suitability, accuracy and maintenance of such Content.
In particular, Customer shall be responsible for ensuring that its Content complies with:
the Acceptable Use Restrictions;
all applicable rights of third parties; and
all applicable laws and regulations;
and shall indemnify and hold harmless Provider against all loss or damage which Provider may suffer as a result of Customer’s use, processing or storage of Content in any fashion that infringes the terms of this clause 6.2.
Without prejudice to its other rights under this Agreement, Provider shall be entitled to delete, suspend, or otherwise restrict any Content which it considers to be in breach of the terms of this Agreement.
Provider puts Customer on notice that it is entitled to, and shall, share or make available Content where it is required to do so by law (such as in response to disclosure orders made by a court of law, or search warrants served by law enforcement agencies with appropriate jurisdiction). Provider may not give Customer notice of such events and shall have no liability to Customer as a result of its compliance with such legal obligations.
7. Unlawful Content Notifications
If you consider that any content on the Website or the Services infringes or violates your copyright (or other intellectual property rights), or is otherwise unlawful, please contact us at firstname.lastname@example.org.
Please note that there may be legal consequences for sending false, frivolous or vexatious requests for the removal or takedown of content. Please consider this carefully (taking into account exceptions and lawful licensed usage of content) before submitting any complaint.
Making repeated unfounded requests for the removal of content may be considered to be harassment and, in such cases, will result in Provider taking steps to suspend or terminate your Deployment Accounts and/or User Accounts.
This Agreement shall commence on the Commencement Date and shall continue for the Initial Period and thereafter for any Extension Periods invoked pursuant to Clause 8.2 unless and until terminated by either party in accordance with Clause 18 below.
This Agreement shall automatically be extended for an Extension Period at the conclusion of the Initial Period and at the conclusion of each subsequent Extension Period thereafter until terminated in accordance with Clause 18.
Access to the Services may not commence on the Commencement Date, and Provider shall be entitled to suspend such access until it is satisfied that it has received the payable Fee in full and that it has adequately verified the identity of the Customer.
The Customer undertakes to pay the applicable Fee for the Services, which (unless otherwise expressly stated on the Website or, where agreed, in a Payment Schedule) shall be payable in advance. Payment shall be made by the Customer using direct debit or an equivalent alternative electronic payment method, and may be scheduled to be taken from the Customer automatically at regular intervals.
Unless an alternative formulation is stated in a Payment Schedule, the Fee payable by the Customer will be determined by reference to the Tier of service to which the Customer has Subscribed, plus the cost of any additional User Accounts and/or Support which may be purchased by the Customer.
The Customer may, at any time, upgrade its current service Tier, or purchase Subscriptions to additional Tiers of service. Where such an upgrade takes place midway through a scheduled subscription period then the Customer shall be charged a prorated fee for the remainder of that scheduled subscription period.
Where the Customer wishes to purchase additional Support, User Accounts or Sessions not included in its current Tier it will be required to either (a) upgrade its subscription by purchasing a higher Tier of service, or (b) pay an additional fee, as specified on the Website, in order to gain access to additional User Accounts or Sessions at its current service Tier. Where the Customer elects to pay a fee for additional User Accounts or Sessions that fee shall be payable again at each interval at which payment of the Fee for the Customer’s chosen service Tier becomes due.
Provider shall be entitled to charge the Customer interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) on a daily basis at the rate of 8 per cent per annum or at the maximum rate permitted by statute from the due date therefore until payment.
Where this Agreement would be extended by virtue of Clause 8.2 then the Customer shall be obliged to make payment of the Fee prior to any such extension commencing.
Provider shall be entitled to increase the Fee from time to time by posting details of the updated Fee on the relevant part of the Website. Such increases shall take effect immediately and shall be payable by the Customer at the commencement of the first Extension Period which commences after the relevant increase. Where this Agreement’s Fees are specified in a Payment Schedule then the intervals at which that Payment Schedule may be updated or amended shall be specified within the document itself.
All sums due under this Agreement are expressed exclusive of VAT (and/or any other applicable sales taxes) but will be subject to VAT (and any other relevant sales taxes) where applicable which will be payable by the Customer.
From time to time, Provider may offer Free Accounts. Customers using the Service by way of a Free Account will not be eligible to receive any customer support or technical support pursuant to the terms of this Agreement.
Provider may withdraw or modify Free Accounts (and/or the extent of such accounts’ functionality) at any time without prior notice and without liability, to the extent permitted under applicable law.
Provider reserves the right to suspend or terminate a Customer’s use of a Free Account at any time without notice and without liability.
Where Provider provides any other services to the Customer which are not covered by the Fee paid by the Customer, it shall be entitled to invoice the Customer in arrears with such charges to be based on Provider's then current charging rates, or if agreed otherwise Provider’s quote at the time of the Customer’s enquiry in relation to those services.
For the avoidance of doubt, failure by the Customer to make use of any aspect of the Services during a Subscription shall not entitle the Customer to any form of refund or rebate.
10. Service Levels
Where a Tier entitles the Customer to receive the Service subject to a specified Service Level Provider will use its reasonable endeavours to deliver the relevant Services to the levels of performance specified in the applicable Service Level; subject always to Clauses 16.5 and 20 and save where otherwise expressly provided for by this Agreement.
11. Outages, Service Interruptions and Changes to Services
Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to, or maintenance of the Services. Provider will use reasonable endeavours to minimise the duration of such Outages or Service Interruptions that it deems necessary.
If Outages or Service Interruptions are required pursuant to Clause 11.1, Provider will endeavour to schedule them so as to minimise impact on the Services and to notify the Customer as far in advance as is practicable of the anticipated commencement time and estimated duration of the relevant Outage or Service Interruption.
Customer requested interruptions (including, but not limited to, request for an application server to be re-booted) will be fulfilled at Provider’s discretion but will not be considered a break in service, and will not be a factor when considering the Service Levels for any purpose or give rise to any liability on the part of Provider.
Save for where an applicable Service Level specifically provides otherwise the occurrence of Outages or Service Interruptions shall not constitute breaches of this Agreement.
12. Provider Warranties
Provider warrants to and undertakes with the Customer that:
it will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
it has full right power and authority to provide the Services to the Customer in accordance with the terms of this Agreement;
it has all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term; and
it will at all times comply with the Data Protection Legislation and with the Conduct Legislation.
For the avoidance of doubt, Provider makes no warranty that use of the Service will guarantee or enable compliance with any particular laws, regulations or codes of conduct. The Customer’s compliance with any legal requirements to which it may be subject is entirely its own responsibility and Provider shall have no liability or responsibility in respect of the same.
Provider makes no representation or warranty that any information provided by or contained within the Services or Software shall be accurate, complete or up-to-date and the Customer shall be responsible for verifying any such information on which it may choose to rely.
Except for the express warranties set forth in this Clause 12, the Services are provided on an “as is” basis, and the Customer’s use of the Services is at its own risk. Provider does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.
Provider does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
13. Customer Obligations and Warranties
In the event that the Customer is in breach of any of its obligations (including, for the avoidance of doubt, timely payment of the Fee) under this Agreement, then: -
Provider cannot be held responsible should the Services fail to perform and comply with the Service Levels as a result (directly or indirectly) of such Customer breach;
Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at Provider’s then current standard charging rates; and
Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at Provider’s then current standard charging rates; and
The Customer represents, warrants and undertakes that:
it has and shall during the Term have the legal right and authority to use and have used the Customer Equipment and Content as contemplated under this Agreement;
it will use the Services only for lawful purposes and in accordance with this Agreement;
it will at all times comply with Data Protection Legislation;
any Personal Data will only be provided to Provider in accordance with Data Protection Legislation;
it will be solely responsible for the accuracy and submission of Customer Data when using the Services and Provider will not be liable for failing to ensure the accuracy of any Customer Data; and
any software, data, equipment or other materials provided by the Customer to Provider or employed by the Customer in its use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or Personal Data interests of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any country or state which may have jurisdiction over such activity.
In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law, Provider will have the right to suspend immediately any related Services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give the Customer an opportunity to cure such breach. In such case once the Customer has cured the breach, Provider will promptly restore the Services.
Customer undertakes to indemnify and hold harmless Provider against any loss or damage which Provider may suffer as a result of Customer’s use of the Services, including for the avoidance of doubt any infringement, or alleged infringement, by Customer of any third party’s Intellectual Property Rights which arises as a result of Customer’s use of the Services.
14. Data Protection
The parties to this Agreement recognise that the Customer may configure a Deployment and/or Application in such a way as to cause a transfer of Personal Data from Customer to Provider. In such an event Provider shall be a Data Processor in respect of that Personal Data.
Save for as specified in clause 14.3, Provider makes no warranty that it will store or process any particular data in any particular jurisdiction.
The Parties recognise the terms of the ‘Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information’ (the “EU Japan Adequacy Decision”). Provider undertakes that it shall comply with the terms of the supplementary rules specified by the EU Japan Adequacy Decision.
Where a transfer of data of the type specified in clause 14.1 occurs Provider it warrants that in relation to the Personal Data in respect of which it is a Data Processor that:
It will process that Personal Data only as instructed by Provider which, for the avoidance of doubt, shall mean limiting the processing of the relevant data to the processing specified by the Customer’s configuration of its Deployment and associated Applications;
having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, Provider will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against accidental loss or destruction;
it will not transfer Personal Data outside of the EEA and/or any territory in respect of which there is a valid and subsisting Adequacy Decision without ensuring that appropriate safeguards are in place and that any transfer is lawful under all applicable Data Protection Legislation;
it will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the Data Controller reimbursing it for the cost of the same;
it will notify the Data Controller, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to, subject to the Data Controller reimbursing it for the cost of the same;
it shall report to the Data Controller any suspected data breach concerning the Personal Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject to the Data Controller reimbursing it for the cost of the same;
it shall, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation; and
at the written instruction of the Data Controller securely delete or return Personal Data and copies thereof to the Data Controller on termination of this Agreement unless prohibited from doing so by an act of law which requires otherwise.
Customer recognises that Provider uses various third-party service providers in order to deliver the Services. Provider warrants that, where those third-party service providers are engaged to provide any service which involves the processing of Personal Data, that those third parties have provided sufficient guarantees to implement appropriate technical and organisational measures to ensure the compliant processing of that data.
The Parties agree that Provider may discharge its obligations pursuant to this clause 14 by way of making available to the Customer automated functionality that enables the Customer to receive the benefit of those obligations without direct communication with Provider.
A fundamental part of ensuring security is access control. Customer acknowledges that the Services contain functionality which enable it to make some or all of its Deployments publicly viewable and/or accessible. Customer is solely responsible for any choice it may make to permit public access to one or more of its Deployments.
Each party recognises that it is impossible to maintain flawless security but, taking into account the relevant risks and the state of the art, Provider shall take all reasonable steps to:
prevent security breaches in its own servers' interaction with the Customer;
secure Customer’s data against unauthorised third party intrusion and access; and
prevent any security breaches occurring in relation to any interaction between the Software and third-party resources on which its operation relies.
The Customer is responsible for maintaining the security of its Deployment Accounts and User Accounts. The Customer must ensure the continued confidentiality of any passwords which are required to access the Software and the Services and is solely responsible for any damage caused by any such unauthorised access which arises from its failure to do so.
The Customer accepts that it shall retain liability for all use of its Deployment Accounts and User Accounts, irrespective of whether such use occurs as a result of the Customer’s failure to ensure the security of those accounts.
The Customer shall notify Provider immediately if it suspects or becomes aware of any breach of security which occurs in relation to the Software.
16. Limitation of Liability
Except as expressly stated in Clause 16.2:
Provider shall not be liable for any indirect or consequential loss or damage suffered by the Customer, irrespective of how such loss or damage may arise and no matter which theory of liability gives rise to any cause of action by Customer.
Provider shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
special damage, even though Provider was aware of the circumstances in which such special damage could arise;
loss of profits;
loss of anticipated savings;
loss of business opportunity;
loss of goodwill; or
loss of or damage to data.
to the extent that not excluded by Clauses 16.1.2, 16.3, 16.4, 16.5 or otherwise, the total aggregate liability of Provider, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fee actually paid by the Customer during the Initial Period or, where the Initial Period has elapsed, during the 12 month period immediately prior to the first event which gave rise to the Customer’s right to bring a claim against Provider.
the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Provider shall have no liability otherwise than pursuant to the express terms of this Agreement.
The exclusions in Clause 16.1 shall apply to the fullest extent permissible at law but Provider does not exclude liability for:
death or personal injury caused by the negligence of Provider, its officers, employees, contractors or agents;
fraud or fraudulent misrepresentation; or
any other liability which cannot be excluded by law.
Provider shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond Provider's reasonable control.
The Customer accepts that Provider is in no way liable for any virus or other contaminants which enter the Customer's email system or computer network via email or for any loss, damage, interruption to the Services or Outages caused by the failure of the Customer Equipment.
Provider shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from: -
interruptions to the flow of data to or from the Internet;
Customer’s inability to use the Services or failure to use the Services correctly;
any third party’s use of the Services;
changes to the Software, the Services, or the pricing of any Tier;
changes, updates or repairs to the network or the Software subject to Provider striving to minimise the interruptions / Outages that may be caused by such change;
the effects of the failure or interruption of services provided by third parties;
any of the factors set out in Clause 20;
any actions or omissions of the Customer (including, without limitation, breach of the Customer's obligations set out in this Agreement) or any third parties;
problems with the Customer Equipment, any other equipment owned by the Customer and/or any third-party equipment; or
interruptions to the Services requested by the Customer.
The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Fee has been calculated on the basis of the limitations and exclusions in this Clause 16 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 16.
Notwithstanding the foregoing and except as expressly stated in Clause 16.2, in no event shall Provider be liable to the Customer for any claims or costs sustained by the Customer in relation to any Free Account, for consequential, special, direct or indirect losses or damages sustained by it or any third parties, irrespective of whether under contract, tort or otherwise (including, without limitation, loss of profits, loss of revenues, loss of customers or damage to reputation or goodwill).
17. Intellectual Property Rights
Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, Services, documentation and other materials used by Provider in connection with or related to the provision of the Services hereunder.
Save where otherwise expressly specified, Provider shall retain ownership to all Intellectual Property Rights of which it is the owner, or of which it becomes the owner during the course of this Agreement’s term. For the avoidance of doubt, all copyright inherent in the presentation and/or ‘look and feel’ of the Website and Services is the sole property of Provider.
Provider warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Agreement.
The Customer hereby grants to Provider:
A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate Content and data provided by the Customer or resulting from the Services for the purposes of using the data for the provision of the Services; and
A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display the Customer’s trade marks for the purposes of using the data for the provision of the Services.
Subject to any contrary provision in this Agreement, Provider undertakes only to use the Customer’s trade marks for the purpose of providing the Services and for marketing purposes.
For the purposes of this Clause 18, the following events shall be deemed “acts of default”:
if the Customer fails to pay any Fees due pursuant hereto;
if a party commits any material breach of any term of this Agreement;
if a party becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
If the Customer commits an act of default then Provider may forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement.
If either party commits an act of default, the other party may terminate this Agreement by notice in writing forthwith.
Provider shall be entitled to terminate this Agreement by giving 30 days’ written notice.
The Customer shall be entitled to terminate this Agreement by giving 30 days’ written notice.
Provider shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the Customer:
if the Customer undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the Customer;
if the Customer sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity;
if Provider ceases to offer the Services to the general public; or
if the Customer disputes the ownership or validity of Provider's Intellectual Property Rights.
Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
In the event of termination of this Agreement: -
the Customer agrees promptly to pay to Provider all outstanding Fees (and any other payments due);
Provider’s entitlement to use the Customer’s trademarks ceases immediately except as necessary for the provision of any post-termination services;
Provider may in its sole discretion agree to provide any assistance reasonably requested by the Customer in connection with the hand-over to a third party of any services or data, but shall not in any circumstances be obliged to provide such assistance, where Provider does provide such assistance it shall be entitled to charge its then current standard rates in respect of the same; and
the Customer’s right to receive the Services shall cease automatically.
Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination. For the avoidance of doubt, termination of this Agreement shall not in any circumstances entitle the Customer to any form of rebate or refund.
19. Confidentiality and Ownership of Customer Data
Subject to Clause 19.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (“Confidential Information”).
Each party hereby undertakes not to, without the other’s written consent, disclose the others’ Confidential Information in whole or in part to any other party (save those of its employees, agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same).
The provisions of Clause 19.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
trivial or obvious;
already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
in the public domain other than as a result of a breach of this Clause; or
to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
Each of Provider and the Customer hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and the provisions of this Clause 19.
Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party's Confidential Information immediately upon becoming aware of the same.
For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of the Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto.
Provider reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of the Customer for demonstrating its expertise to potential clients, subject always to the provisions of this Clause 19.
The provisions of Clause 19 shall remain in full force and effect notwithstanding any termination of this Agreement.
20. Force majeure
Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub-contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute (except involving a party’s own employees), pandemic or other mass outbreak of illness, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
To Provider: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class recorded post to the Provider’s registered office address or email (such email notice to be confirmed by delivery or read receipt).
To Customer: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by email (such email notice to be confirmed by delivery or read receipt) to the Customer’s email address used as login to the subscribed services.
Provider is permitted to make announcements or information concerning this Agreement available in any advertising publicity promotional or other marketing activities without the prior written consent of the Customer. For the avoidance of doubt, Provider is permitted to use the Customer’s name, logo and any feedback it provides to the Company. The Customer shall, on request, assist Provider in preparing a case study which sets out the benefits that the Customer has derived from receipt of the Services.
The Customer shall not make an announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities without the prior written consent of Provider.
Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
25. Invalidity and severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
The Customer shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without Provider’s prior written consent.
Provider shall be entitled to assign this Agreement or all or any of its rights and obligations hereunder.
Provider shall be entitled to sub-contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
29. Governing Law & Jurisdiction
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Japan.
Each party irrevocably agrees that the Tokyo Summary Court or the Tokyo District Court shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
The parties irrevocably agree that the Tokyo Summary Court or the Tokyo District Court are the most appropriate and convenient courts to settle any dispute or claim, and accordingly, no party will argue to the contrary.
30. Third Party Rights
No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.