Saascoms subscription service Terms and Conditions
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Service and the Documentation, as detailed in the Order Form and as further described in clause 6.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Saascoms is a trading name for Complete Communication Solutions Limited registered in England and Wales with company number 05076259 and registered address C/O Mitten Clarke, Festival Way, Festival Park, Stoke-on-Trent, Staffordshire. ST1 5TQ.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.2.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.6.
Contract: the contract between Saascoms and the Customer for the subscription to the Service in accordance with the Order Form and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the business which purchases the Service from Saascoms as set out in the Order Form.
Customer Data: the data (including any personal data as defined in the Data Protection Legislation) inputted by the Customer, any Group Company, or Saascoms on the Customer’s and/or any Group Company’s behalf for the purpose of using the Service or facilitating the Customer’s and/or any Group Company’s use of the Service.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party).
Documentation: the documents made available to the Customer by Saascoms via the Website, or such other web address notified by Saascoms to the Customer from time to time which sets out a description of the Service and the user instructions for the Service. Effective Date: has the meaning set out in clause 2.2.
Group Company: The Customer’s subsidiaries or holding company and any other subsidiaries of the Customer’s holding company which are intended to receive the benefit of the Service, as set out in the Order Form.
Initial Term: 3 months from the Effective Date.
Insolvency Event: means if:
a) a party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of sections 123 of the Insolvency Act 1986 s or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
b) a party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
c) a party’s financial position deteriorates to such an extent that (in the other party’s reasonable opinion) its capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mark(s): the trademarks owned by the Client as set out in the Order Form, and which are licensed to Saascoms under these Conditions.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order: The Customer’s order for Service as set out in the Customer’s Order Form.
Order Form: the form on which the Customer’s Order is made, setting out the specific terms of service.
Renewal Term: the period described in clause 12.1.
Service: the subscription service provided by Saascoms to the Customer under these Conditions via the Website, as more particularly described in the Documentation and as set out in the Order Form.
Special Terms: the additional terms (if any) are detailed in the Order Form.
Subscription Fee: the fee payable by the Customer in return for the right to access and use the Service, as set out in the Order Form and in accordance with clause 7.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Term together with any subsequent Renewal Term).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 7 which entitle Authorised Users to access and use the Service and the Documentation in accordance with these Conditions.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1. Website: www.omnireach.net.
1.2 Clause headings shall not affect the interpretation of these Conditions. References to clauses are to the clauses of these Conditions.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having a separate legal personality).
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 Any words following the term including include or in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract. Any such reference shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.8 Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11 pm on 31 January 2020.
1.9 Where applicable, the Special Terms shall apply in addition to these Conditions. In the event of any conflict between the Special Terms and these Conditions, the Special Terms shall prevail.
1.10 A reference to writing or written includes e-mail.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase a subscription to the Service in accordance with these Conditions. The Order Form upon which the Order is made must be signed by the Customer when the Order is made.
2.2 The Order shall only be deemed to be accepted when Saascoms issues written acceptance of the Order by signing and returning the Order Form, at which point and on which date the Contract shall come into existence (Effective Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Saascoms which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by Saascoms shall not constitute an offer and is only valid for a period of 30 calendar days from its date of issue.
3.1 Subject to the Customer paying the Subscription Fee in accordance with these Conditions, Saascoms hereby grants to the Customer and, where applicable, any Group Companies, a non-exclusive, non-transferable, non-sublicensable right to use the Service and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
3.2 Saascoms shall, during the Subscription Term, provide the Service and make available the Documentation to the Customer and, where applicable, the Group Companies, on and subject to the terms of these Conditions.
3.3 The Customer grants Saascoms a non-exclusive, revocable, royalty-free, non-transferable licence to use the Mark(s) in order for Saascoms to provide the Service to the Customer including displaying the Mark(s) on the Website.
3.4 Saascoms shall use its reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for planned maintenance performed inside or outside Normal Business Hours.
- DATA PROTECTION
4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 4:
Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law;
4.2.2 Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK; and
4.2.3 GDPR means the General Data Protection Regulation (EU) 2016/679.
4.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Saascoms is the processor.
4.4 Without prejudice to the generality of clause 4.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Saascoms for the duration and purposes of the Contract.
4.5 Without prejudice to the generality of clause 4.2, Saascoms shall, in relation to any personal data processed in connection with the performance by Saascoms of its obligations under the Contract:
4.5.1 process that personal data only on the documented written instructions of the Customer unless Saascoms is required by Applicable Laws to otherwise process that personal data. Where Saascoms is relying on Applicable Laws as the basis for processing personal data, Saascoms shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Saascoms from so notifying the Customer;
4.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
4.5.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
4.5.4 not transfer any personal data outside of the European Economic Area unless the relevant conditions of Chapter V of the GDPR are fulfilled including :
(a) the Customer or Saascoms has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Saascoms complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) Saascoms complies with reasonable instructions notified to it from time to time by the Customer with respect to the processing of the personal data;
4.5.5 (and in the event that Saascoms is required by Applicable Laws to transfer personal data outside of the European Economic Area Saascoms shall promptly notify the Customer of that legal requirement before performing the processing required by the Applicable Laws unless the Applicable Laws prohibit Saascoms from so notifying the Customer on important grounds of public interest); assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.5.6 notify the Customer without undue delay on becoming aware of a personal data breach;
4.5.7 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
4.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and promptly inform the Customer if, in the opinion of Saascoms an instruction infringes the Data Protection Legislation.
4.6 The Customer consents:
4.6.1 (subject always to the provisions of clause 4.5.4) to Saascoms transferring personal data outside of the European Economic Area; and
4.6.2 to Saascoms appointing third-party processors of personal data under the Contract. Saascoms confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business which Saascoms confirms reflects and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, Saascoms shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.
4.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
- SAASCOMS OBLIGATIONS
5.1 Saascoms shall provide the Service substantially in accordance with the Documentation and with reasonable skill and care.
5.2 Clause 5.1 shall not apply to the extent of any non-conformance which is caused by the Customer’s use of the Service contrary to Saascoms instructions, or modification or alteration of the Service by any party other than Saascoms or Saascoms duly authorised contractors or agents. If the Service does not comply with clause 5.1, Saascoms will use its reasonable endeavours to correct any such non-conformance as soon as reasonably practicable or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution is the Customer’s sole and exclusive remedy for any breach of clause 5.1.
5.3 Notwithstanding clause 5.2, Saascoms:
5.3.1 does not warrant that:
(a) the Service will be uninterrupted or error-free; or
(b) the Service, the Documentation, the potential employees the Customer is given access to through the Service and/or the information obtained by the Customer through the Service will meet the Customer’s requirements;
5.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and/or the failure to perform of any third party, and the Customer acknowledges that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities and /or such failure to perform of any such third parties; and
5.3.3 is not responsible for any claims, actions, proceedings, losses, damages, expenses, liabilities, fines and costs incurred by the Customer in relation to any contract of employment it has entered into or contemplated entering into by virtue of using the Service.
- CUSTOMER’S OBLIGATIONS
6.1 The Customer shall, and, where applicable, shall procure that any Group Company shall:
6.1.1 ensure that the terms of the Order are complete and accurate;
6.1.2 provide Saascoms with:
(a) all necessary co-operation in relation to any applicable Contract; and
(b) all necessary access to such information,
as may be required by Saascoms in order to provide the Service, including but not limited to Customer Data, security access information and configuration services;
6.1.3 comply with all applicable laws and regulations with respect to its activities under any applicable Contract;
6.1.4 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Saascoms may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for Saascoms, its contractors and agents to perform their obligations under these Conditions, including without limitation the Service;
6.1.7 ensure that its network and systems comply with the relevant specifications provided by Saascoms from time to time; and
6.1.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Saascoms data centres, and all problems, conditions, delays, delivery failures and all other losses or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
6.2 In relation to the Authorised Users, the Customer undertakes that:
6.2.1 the maximum number of Authorised Users that it authorises to access and use the Service and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
6.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Service and/or Documentation;
6.2.3 each Authorised User shall keep a secure password for his use of the Service and Documentation, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
6.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to Saascoms within 20 Business Days of Saascoms request at any time or times;
6.2.5 shall permit Saascoms to audit the Service in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
6.2.6 if any of the audits referred to in clause 6.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Saascoms other rights, the Customer shall promptly disable such passwords and Saascoms shall not issue any new passwords to any such individual; and
6.2.7 if any of the audits referred to in clause 6.2.5 reveal that the Customer has underpaid Subscription Fees to Saascoms, then without prejudice to Saascoms other rights, the Customer shall pay to Saascoms an amount equal to such underpayment within 10 Business Days of the date of issue of an invoice detailing such underpayment following the relevant audit.
6.3 The Customer undertakes that:
6.3.1 it will not allow or suffer any individual to make use of the Service and/or Documentation who is:
(a) under the age of 16;
(b) not an employee, agent or independent contractor of the Customer or, where applicable, a Group Company authorised to make use of the Service and/or Documentation;
6.3.2 the Service and Documentation shall be password protected, with such password being kept confidential and that other reasonable measures shall be taken by the Customer to ensure the security of the Service and Documentation;
6.3.3 it shall permit Saascoms to audit the Customer’s use of the Service;
6.3.4 if any of the audits referred to in clause 6.3.3 reveal that any password has been provided to any person who is not authorised to make use of the Service and/or Documentation, then without prejudice to Saascoms other rights, the Customer shall promptly disable such passwords and Saascoms shall not issue any new passwords to any such person;
6.3.5 if any of the audits referred to in clause 6.3.3 reveal that the Customer has shared its account with persons who are not authorised to make use of the Service and/or Documentation, then without prejudice to Saascoms other rights, Saascoms will be entitled to impose such additional charges on the Customer as it sees fit, at all times acting reasonably; and
6.3.6 it is the owner of the Mark(s).
6.4 The Customer shall not, and, where applicable, shall procure that any Group Companies shall not, during the course of its use of the Service introduce, access, store, distribute or transmit:
6.4.1 any Viruses or Vulnerabilities; or
6.4.2 any material 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, age, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Saascoms reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
6.5 The Customer shall not, and, where applicable, shall procure that any Group Companies shall not:
6.5.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service and/or Documentation (as applicable) in any form or media or by any means; or
6.5.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
6.5.3 access all or any part of the Service and/or Documentation in order to build a product or service which competes with the Service and/or the Documentation; or
6.5.4 use the Service and/or Documentation to provide or resell similar services to third parties; or
6.5.5 subject to clause 13.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except any named entity within any applicable Group Company, or
6.5.6 attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under this clause 6.
6.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Saascoms.
- CHARGES AND PAYMENT
7.1 The Customer shall pay the Subscription Fee to Saascoms for the User Subscriptions in accordance with this clause 7 and the Order Form. If requested by Saascoms, the Customer shall make such payment by either direct debit and/or standing order as appropriate and shall provide Saascoms with all necessary bank details in order to effect such payment.
7.2 Saascoms shall invoice the Customer in the frequency as set out in the Order Form under the section entitled “Payment Terms.”
7.3 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and Saascoms shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with these Conditions, provided always that:
7.3.1 if the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Saascoms in writing and Saascoms shall activate the additional User Subscriptions within 3 Business Days of the Customer’s request; and
7.3.2 the Customer shall pay to Saascoms the Subscription Fees for such additional User Subscriptions as set out in the Order Form in accordance with the relevant invoice for the same submitted by Saascoms and if such additional User Subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Term (as applicable), such fees shall be pro-rated from the date of activation by Saascoms for the remainder of the Initial Term or then-current Renewal Term (as applicable).
7.4 Saascoms shall submit an invoice to the Customer for the Subscription Fee monthly in advance. The Customer shall pay each invoice submitted by Saascoms under the Contract:
7.4.1 within 30 days of receipt; and
7.4.2 in full and in cleared funds to the applicable bank account, details as set out in the Order Form, and time for payment shall be of the essence of the Contract.
7.5 If Saascoms has not received payment upon receipt of the relevant invoice, and without prejudice to any other rights and remedies of Saascoms:
7.5.1 Saascoms may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Service and Saascoms shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
7.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over 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.
7.6 All amounts and fees stated or referred to in these Conditions:
7.6.1 shall be payable in pounds sterling;
7.6.2 are, subject to clause 11.4.2, non-cancellable and non-refundable;
7.6.3 are exclusive of value-added tax, which shall be added to Saascoms invoice(s) at the appropriate rate.
7.7 Saascoms shall be entitled to increase the Subscription Fee by a reasonable amount not more than once in every twelve (12) month period calculated from the Effective Date upon 30 days prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
- PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that as between Saascoms and the Customer, Saascoms and/or its licensors own all Intellectual Property Rights arising in connection with the development and provision of the Service and the Documentation. Except as expressly stated herein, these Conditions do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service or the Documentation.
8.2 Saascoms confirms that it has all the rights in relation to the Service and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, any applicable Contract.
9.1 Each party, together with its employees, agents, officers, representatives and advisers, may be given access to Confidential Information from the other party in order to perform its obligations under any applicable Contract. A party’s Confidential Information shall not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each is required by law, not to 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 any applicable Contract.
9.3 Notwithstanding the provisions of clause 9.2, Saascoms may disclose the Customer’s Confidential Information to a prospective private equity investor, provided that the prospective private equity investor enters into a confidentiality agreement with Saascoms to maintain the confidentiality of such Confidential Information on no less favourable terms than those in this clause 9 and that such Confidential Information is anonymized wherever possible. a party shall hold the other’s Confidential Information in confidence and, unless
9.4 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, agents, officers, representatives or advisers in violation of any applicable Contract.
9.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.6 The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute Saascoms’ confidential information.
9.7 Saascoms acknowledges that the Customer Data is the Confidential Information of the Customer.
9.8 This clause 9 shall survive termination of any applicable Contract, however arising.
9.9 No party shall make, or permit any person to make, any public announcement concerning any applicable Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.1 The Customer shall defend, indemnify and hold harmless Saascoms against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Service and/or Documentation (including but not to any contracts of employment entered into by the Customer or Group Company as a result of its use of the Service) provided that:
10.1.1 the Customer is given prompt notice of any such claim;
10.1.2 Saascoms provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
10.1.3 the Customer is given sole authority to defend or settle the claim.
10.2 Saascoms shall defend the Customer, its officers, directors and employees against any claim that the Service or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.2.1 Saascoms is given prompt notice of any such claim;
10.2.2 the Customer provides reasonable co-operation to Saascoms in the defence and settlement of such claim, at Saascoms expense; and
10.2.3 Saascoms is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, Saascoms may procure the right for the Customer to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall Saascoms its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.4.1 a modification of the Service or Documentation by anyone other than Saascoms; or
10.4.2 the Customer’s use of the Service or Documentation in a manner contrary to the instructions given to the Customer by Saascoms; or
10.4.3 the Customer’s use of the Service or Documentation after notice of the alleged or actual infringement from Saascoms or any appropriate authority.
10.5 The foregoing and clause 11.4 state the Customer’s sole and exclusive rights and remedies, and Saascoms (including Saascoms employees’, agents’ and sub-contractors) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- LIMITATION OF LIABILITY
11.1 This clause 11 sets out the entire financial liability of Saascoms (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
11.1.1 arising under or in connection with these Conditions;
11.1.2 in respect of any use made by the Customer of the Service and Documentation or any part of them; and
11.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.
11.2 Except as expressly and specifically provided in these Conditions:
11.2.1 the Customer assumes sole responsibility for results obtained from the use of the Service and the Documentation by the Customer, and for conclusions drawn from such use. Saascoms shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Saascoms by the Customer in connection with the Service, or any actions taken by Saascoms at the Customer’s direction;
- 11.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
11.2.3 the Service and the Documentation are provided to the Customer on an “as is” basis.
11.3 Nothing in these Conditions excludes the liability of Saascoms:
11.3.1 for death or personal injury caused by Saascoms negligence; or
11.3.2 for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.2 and clause 11.3:
11.4.1 Saascoms shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits, loss of business, depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and
11.4.2 Saascoms total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any applicable Contract shall be limited to the total Subscription Fees paid or payable by the Customer in relation to that Contract during the twelve (12) months immediately preceding the date on which the liability arose.
- TERM AND TERMINATION
12.1 The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Term and, thereafter, shall be automatically renewed for successive monthly periods (each a Renewal Term), unless:
12.1.1 during the Initial Term, either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term, in which case the Contract shall terminate upon the expiry of the Initial Term;
12.1.2 during any Renewal Term, either party notifies the other party of termination, in writing, at least 30 days before the end of that Renewal Term, in which case the Contract shall terminate upon the expiry of that Renewal Term; or
12.1.3 it is otherwise terminated in accordance with the provisions of these Conditions;
and the Initial Term together with any subsequent Renewal Terms shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.2.1 the other party commits a material breach of any other term of these Conditions which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
12.2.2 the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions;
12.3 Without affecting any other right or remedy available to it, Saascoms may terminate the Contract with immediate effect and/or suspend the supply of the Service under the Contract or any other contract between the Customer and Saascoms by giving written notice to the Customer if:
12.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
12.3.2 there is a change of control of the Customer.
12.3.3 the Customer becomes subject to an Insolvency Event (or Saascoms reasonably believes that the Customer is about to become subject to any of them).
12.4 On termination of the Contract for any reason:
12.4.1 all rights and licences granted under these Conditions shall immediately terminate;
12.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
12.4.3 Saascoms may destroy or otherwise dispose of any of the Customer Data in its possession unless Saascoms receives, no later than ten days after the effective date of the termination of the contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Saascoms shall use reasonable endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Saascoms in returning or disposing of Customer Data; and
12.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Conditions which existed at or before the date of termination shall not be affected or prejudiced.
- MISCELLANEOUS MATTERS
13.1 Force Majeure: Saascoms shall have no liability to the Customer under these Conditions if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Saascoms or any other party), failure of a utility service or transport or telecommunications network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
13.2 Variation: Saascoms reserves the right to vary these Conditions at any time during the Initial Term or any Renewal Term (as applicable), on written notice to the Customer.
13.3 Waiver: No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.4 Rights and remedies: Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
13.5 Severance: If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13.6 Entire agreement: These Conditions, the Order Form and any documents referred to in them constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in these Conditions.
13.7 Assignment: The Customer shall not, without the prior written consent of Saascoms (such consent not to be unreasonably withheld, delayed or conditioned), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions. Saascoms may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.
13.8 No partnership or agency: Nothing in these Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13.9 Third party rights: These Conditions do not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.10 Notices: Any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
13.11 Governing Law & Jurisdiction: These Conditions and any dispute or claim arising out of or in connection with them or their 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 these Conditions or their subject matter or formation (including non-contractual disputes or claims).
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