Terms and Conditions for the use of the Datanest software.
United Kingdom
INTRODUCTION
(A) Datanest Software Limited (DSL) owns and operates Datanest, a software platform which allows users to collect data, upload and analyse data, create maps and figures and produce scientific reports on a project-by-project basis.
(B) DSL provides the Software and Cloud Services described in the Cloud Service Specification.
(C) The Customer wishes to use DSL's Cloud Services (which includes the Software) in its business operations.
(D) DSL has agreed to provide and the Customer has agreed to take and pay for DSL's Cloud Services subject to the terms and conditions of this Agreement.
Agreed Terms
1. DEFINITIONS AND INTERPRETATION
Agreement: the terms and conditions of this Agreement and any other documents referenced in, or attached to, this Agreement or an Subscription Offer (all such documents together described as this Agreement).
Applications: any software, applications or other code owned by or licensed to the Customer that the Customer installs or loads onto, or creates using, any Cloud Services designed for such purposes.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Cloud Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Cloud Services: means each service hosting or making available the Software and described in the relevant Cloud Service Specification and made available to the Customer via the internet or other network.
Cloud Service Specification: means each document describing the functionality and technical specification of each Cloud Service, available at DSL's website (www.datanest.earth) as the same may be updated from time to time.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 7.5 or clause 7.6.
Customer Data: the data inputted by the Customer, Authorised Users, or DSL on the Customer's behalf for the purpose of using the Cloud Services or facilitating the Customer's use of the Cloud Services.
Datanest: the Datanest suite of software programmes, owned and operated by DSL, which allow users to collect data, upload and analyse data, create maps and figures and produce scientific reports on a project-by-project basis.
Documentation: the documents, including the Cloud Service Specification, made available to the Customer by DSL online, either via DSL's website (www.datanest.earth), email or such web address notified by DSL to the Customer from time to time which sets out a description of the Cloud Services and the user instructions for the Cloud Services.
Effective Date: The date specified in the Subscription Offer or, if no date is specified, the date the Customer first accepts this Agreement or accesses the Cloud Services.
Initial Subscription Term: the initial term of this Agreement as set out in the Subscription Offer.
Normal Business Hours: 8am to 5pm, Monday to Friday.
Renewal Period: the period described in the Subscription Offer.
Software: Datanest and any software that is supplied to the Customer as part of the Cloud Services, including all revised versions and updates.
Subscription Offer: The proposal, subscription confirmation, or other document agreed between the parties setting out the subscription plan, fees, number of Authorised Users, Initial Subscription Term, Renewal Period, and any special terms.
Subscription Fees: the subscription fees payable by the Customer to DSL for the User Subscriptions, as set out in the Subscription Offer.
Subscription Term: The term as set out in the subscription Offer (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Description: means the document, available at https://www.datanest.earth/pricing describing the maintenance and support services to be provided by DSL for the Cloud Services.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to this Agreement which entitle Authorised Users to access and use the Cloud Services and the Documentation in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or program) which may:
a. 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;
b. prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
c. 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 interpreted accordingly.
1.1 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as it is amended from time to time, and shall include all subordinate legislation made under that statute or statutory provision.
1.7 A reference to writing or written includes email.
1.8 If there is any conflict or inconsistency between the terms of this Agreement, the following order of priority shall apply such that a term contained in a higher document on the list shall take precedence over a term contained in a lower document on the list:
the Subscription Offer;
1.8.1 the Cloud Services Specification;
1.8.2 the Support Services Description; and
1.8.3 these cloud computing terms.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. CLOUD SERVICES
2.1 The Customer must read the terms of this Agreement carefully before using Datanest. Datanest is not intended to be a substitute for professional judgment and the Customer should not act in reliance upon it without first obtaining professional advice as to its particular circumstances.
2.2 The Customer's access to and use of the Cloud Services is conditional on the Customer's (which includes, by reference, all Authorised Users') acceptance of and compliance with the terms of this Agreement. The terms of this Agreement apply to all Authorised Users. By accessing or using the Cloud Services the Customer agrees to comply with and be bound by this Agreement. If the Customer does not accept any part of this Agreement, then the Customer must not access the Cloud Services.
2.3 DSL grants to the Customer a limited, non-exclusive, non-transferable, revocable right and licence, without the right to sublicense, to permit the Customer, via rights of access granted to the Customer's Authorised Users, to access and use the Cloud Services solely for Customer's operations. The grant of this right and licence is subject to the Customer's compliance with this Agreement.
2.4 In relation to the Authorised Users, the Customer undertakes that:
2.4.1 it shall only use and access the Cloud Services in accordance with this Agreement (including any restrictions in the Subscription Offer);
2.4.2 the maximum number of Authorised Users that it authorises to access and use the Cloud Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2.4.3 it will not allow 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 Cloud Services;
2.4.4 it shall, no more frequently than once per year, permit DSL or DSL's designated auditor to audit the Cloud Services, or use DSL's requested software reporting, to verify that the Customer's use of the Cloud Services does not exceed the number of User Subscriptions purchased by the Customer;
2.4.5 if any of the audits referred to in clause 2.4.4 reveal that the Customer has underpaid DSL for its use of the Cloud Services, then without prejudice to DSL's other rights, the Customer shall pay to DSL an amount equal to such underpayment as calculated in accordance with the prices set out in the Subscription Offer; and
2.4.6 the Customer's Authorised Users may only access the Cloud Services via the methods specified in the Cloud Services Specification or the Subscription Offer.
2.5 The Customer is responsible for all acts and omissions of each Authorised User and any and all use of the Cloud Services using each Authorised User's access credentials.
2.6 The Customer shall not, and shall procure that each Authorised User does not:
2.6.1 use the Cloud Services in any way, or for any purpose, that is unlawful;
2.6.2 except to the extent expressly permitted by this Agreement or lawfully permitted pursuant to applicable law, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Cloud Services, Software or Documentation (as applicable) in any form or media or by any means;
2.6.3 except to the extent expressly permitted by this Agreement or lawfully permitted pursuant to applicable law, attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Cloud Services or the Software;
2.6.4 store, access, publish, disseminate, distribute or transmit via the Cloud Services any material which:
2.6.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.6.4.2 facilitates illegal activity;
2.6.4.3 depicts sexually explicit images;
2.6.4.4 promotes unlawful violence;
2.6.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.6.4.6 is otherwise illegal or causes damage or injury to any person or property;
2.6.5 access all or any part of the Cloud Services and Documentation in order to build a product or service which competes with the Cloud Services or the Documentation;
2.6.6 resell, sublicense, white-label, or otherwise make the Cloud Services available as a standalone service to any third party. The Customer may use the Cloud Services for its internal business operations and, where applicable, to provide professional services and deliverables to its own clients, provided that the Customer shall not resell, sublicense, white-label, or otherwise make the Cloud Services available as a standalone service to any third party.
2.6.7 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Cloud Services or Documentation available to any third party except the Authorised Users;
2.6.8 attempt to obtain, or assist third parties in obtaining, access to the Cloud Services or Documentation, other than as provided under this clause 2.6; or
2.6.9 use the Datanest name or branding material to promote the Customer's business without DSL’s prior written approval, and such use must comply with any conditions imposed by DSL.
2.7 The Customer grants DSL a non-exclusive, worldwide licence to host, copy, process, transmit, display and use Customer Data solely to the extent necessary to provide, secure, support, maintain and improve the Cloud Services in accordance with this Agreement.
2.8 The Customer shall procure at its cost, install and maintain all required hardware, enabling software, third-party software, network equipment and internet connectivity required to access and use the Cloud Services. The Customer acknowledges that a failure to do so may impact its use of the Cloud Services.
2.9 The Cloud Services may be provided from any jurisdiction, provided that any processing or hosting of personal data outside the UK complies with the transfer requirements set out in Clause 9.
2.10 DSL warrants that the Cloud Services shall comply in all material respects with the Cloud Services Specification. DSL, as the Customer's sole and exclusive remedy, shall promptly correct any event or circumstance resulting in a breach of this clause 2.10.
2.11 Unless otherwise expressly set out in this Agreement, DSL does not warrant that the Cloud Services are fit for the Customer's purposes, are error free or uninterrupted, or are compatible with any hardware or software not specified in the Cloud Services Specification. DSL shall not be liable for the transfer of data over communications facilities, including the internet, and any limitations, delays, and other problems inherent in the use of such communications facilities.
2.12 The Customer acknowledges and agrees that DSL and its licensors own all intellectual property rights in the Cloud Services and the Documentation. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Cloud Services or the Documentation.
2.13 DSL shall use reasonable technical and organisational measures to protect Customer Data against unauthorised access, loss, misuse, alteration or disclosure. Subject to clause 11, DSL is not responsible for loss of Customer Data to the extent caused by the Customer, Authorised Users, third-party systems not controlled by DSL, or the Customer’s failure to maintain appropriate backups or access controls.
2.14 The Customer shall be responsible for ensuring the accuracy of, and maintaining copies of, any Customer Data entered into or uploaded to the Cloud Services.
2.15 DSL does not take any responsibility for the Customer Data which the Customer chooses to upload to the Cloud Services. DSL does not pre-screen or monitor the content of any Customer Data. In no event shall DSL be liable for any claims made in relation to the Customer Data including any misleading statements made or incorporated into any Customer Data.
2.16 By signing up for the Cloud Services, the Customer agrees that all information provided during the registration process is true and accurate and the Customer will update this information as required in order to ensure it is current, complete and accurate.
2.17 During the registration process for the Cloud Services, the Customer will be issued a password for the Cloud Services to operate a Customer account. The Customer agrees to be fully responsible for activities that relate to its Customer account including the actions of all Authorised Users and for maintaining the confidentiality of its password. If the Customer has any reason to believe that its password has been obtained by someone else without its consent, the Customer must inform DSL immediately, and DSL may disable the Customer's account, if required.
2.18 DSL may create aggregated and anonymised statistical data from Customer Data and use of the Cloud Services. DSL will ensure that such data does not identify the Customer, Authorised Users, data subjects, or any individual project, and DSL will not attempt to re-identify such data.
2.19 The Customer retains all rights in Customer Data. DSL does not own Customer Data. DSL may process Customer Data only as necessary to provide, secure, support and maintain the Cloud Services, comply with this Agreement, and as otherwise instructed by the Customer. DSL may use aggregated or anonymised data derived from Customer Data and service usage for analytics, service improvement, product development and benchmarking, provided that such data does not identify the Customer, Authorised Users, data subjects, or any confidential Customer Data.
2.20 DSL will retain Customer Data during the Subscription Term. Following termination or expiry of the Agreement, DSL will make Customer Data available for export for 30 days, after which DSL may delete or anonymise Customer Data, unless retention is required by law. If the Customer requires any Customer Data to be archived for a period greater than 30 days, then the Customer will be required to pay DSL an additional storage fee.
2.21 Through the Cloud Services, DSL stores and provides the Customer with access to a wide range of information created or provided by third parties which can be utilised by the Customer to assist it to analyse, assess and customise its Customer Data (including a number of national and international environmental guidelines) (Third Party Information). However in no event shall DSL be responsible for the accuracy or reliability of any Third Party Information made available to the Customer.
3. UPDATES, UPGRADES, MAINTENANCE AND SUPPORT
3.1 DSL may, from time to time and subject to notifying the Customer in writing in advance, make changes to the Cloud Services to:
3.1.1 improve, update or upgrade existing functionality or services;
3.1.2 introduce new functionality or services;
3.1.3 reflect changes to technology or market practice; or
3.1.4 ensure that the Cloud Services remain compliant with all applicable laws, legal obligations or regulations.
Any such changes shall not result in a material degradation in the Cloud Services for the duration of the Initial Term.
3.2 Any helpdesk, maintenance and support services provided by DSL for the Cloud Services are as set out in the Subscription Offer.
4. AVAILABILITY OF CLOUD SERVICES
4.1 DSL will use reasonable endeavours to make the Cloud Services available 24 hours a day, 7 days a week, except for planned maintenance, emergency maintenance, downtime caused by third-party providers, and events beyond DSL’s reasonable control. DSL shall use reasonable endeavours to give the Customer advance notice of any emergency or scheduled maintenance.
4.2 DSL shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. The Customer acknowledges that the Cloud Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.3 DSL may, on no less than 30 days' notice in writing to the Customer terminate any Cloud Service.
5. SUSPENSION
5.1 DSL may, without prejudice to any other rights or remedies available to it, suspend the Customer's access to, or use of, the Cloud Services in whole or in part, and on an Authorised User by Authorised User basis, immediately on notice to the Customer if:
5.1.1 the Customer has failed to pay any amounts due to DSL in accordance with clause 6;
5.1.2 the Customer is otherwise in breach of its obligations under this Agreement or any Subscription Offer;
5.1.3 there is an attack on the Cloud Services used by Customer or if Customer Data is accessed or manipulated by a third party without the Customer's consent;
5.1.4 DSL is required by applicable law to suspend the Customer's access to, or use of, the Cloud Services; or
5.1.5 DSL reasonably believes that the suspension of the Cloud Services is necessary to protect its infrastructure, network or the use of the Cloud Services by other customers because of a threat to the security, integrity or use of the Cloud Services.
5.2 DSL shall use reasonable endeavours to re-establish or permit access to the Cloud Services as soon as reasonably possible following DSL's determination that the cause of the suspension has been resolved.
5.3 DSL shall have no liability whether under this Agreement or at law to the Customer for any exercise of its rights pursuant to this clause 5.
5.4 Where access to the Cloud Services is suspended, the Customer shall continue to pay the applicable Subscription Fees, unless such suspension is caused by DSL's breach of this Agreement.
6. FEES
6.1 DSL shall invoice the Customer for the fees and charges (including the Subscription Fees) set out in a Subscription Offer at the frequency specified in the Subscription Offer (or if no such frequency is specified, annually in advance). The Customer acknowledges that DSL may invoice for the Cloud Services each time the Customer:
6.1.1 purchases additional services;
6.1.2 increases the number of Authorised Users; or
6.1.3 otherwise alters its use of the Cloud Services such that additional amounts may be payable to DSL.
6.2 All amounts due to DSL under this Agreement shall be paid within 30 days of the date of DSL's invoice.
6.3 If DSL has not received payment within 14 days after the due date interest shall accrue on a daily basis on all due amounts at an annual rate equal to 4% over the then current base 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.
6.4 All amounts and fees stated or referred to in this Agreement or any Subscription Offer:
6.4.1 shall be payable in pounds sterling;
6.4.2 are exclusive of value added tax (or equivalent sales tax), which shall be added to DSL's invoices at the appropriate rate.
6.5 From time to time, DSL (or others on DSL’s behalf) may offer trials to use the Cloud Services for a specified period without payment or at a reduced rate (a “Trial”). DSL reserves the right, in its absolute discretion, to determine the Customer's eligibility for a Trial, and may withdraw or modify a Trial at any time without prior notice and with no liability to the Customer, to the extent permitted by law.
6.6 The Customer may request a customisation of the Cloud Services for the Customer's particular use. Any such customisations shall be subject to additional fees. A fee proposal will be issued by DSL to indicate the additional fees for such customisations.
7. CONFIDENTIALITY
7.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 7.2.
7.2 Each party may disclose the other party's confidential information:
7.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 7.2, and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement
7.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, the disclosing party gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
7.5 The Customer acknowledges that details of the Cloud Services, and the results of any performance tests of the Cloud Services, constitute DSL's Confidential Information.
7.6 DSL acknowledges that the Customer Data is the Confidential Information of the Customer.
7.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement 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.
7.8 This clause 7 shall survive termination of this Agreement, however arising.
8. CLOUD SECURITY
8.1 The Customer acknowledges and agrees that it is responsible for assessing the applicability and suitability of DSL's security arrangements for the Cloud Services and for checking periodically with DSL for any updates or changes.
8.2 DSL shall take reasonable steps not to introduce any Viruses into the Customer's network and information systems via the Cloud Services or Software or otherwise.
8.3 Breach Notification: DSL shall notify the Customer without undue delay (and in any event within 48 hours) upon becoming aware of any confirmed or suspected major security incident, unauthorized access, loss, or breach affecting Customer Data.
8.4 Incident Assistance: DSL will provide reasonable assistance and information to the Customer to enable the Customer to comply with its statutory breach reporting obligations to supervisory authorities and affected individuals.
9. DATA PROTECTION
This clause 9 constitutes the parties’ data processing agreement for the purposes of Article 28 of the UK GDPR in respect of Personal Data contained in Customer Data.
9.1 Each party shall comply with all applicable requirements of Data Protection Legislation. For the purposes of this Agreement, Data Protection Legislation means the UK General Data Protection Regulation, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and any successor or replacement legislation.
9.2 For Personal Data contained in Customer Data, the parties acknowledge that the Customer is the Controller and DSL is the Processor. Where DSL processes Personal Data for its own business purposes, including account administration, billing, support, security, analytics, customer management and marketing, DSL acts as an independent Controller and such processing is governed by DSL’s Privacy Policy.
9.3 DSL shall process Personal Data contained in Customer Data only:
9.3.1 to provide, secure, support and maintain the Cloud Services;
9.3.2 in accordance with this Agreement and the Customer’s documented instructions; or
9.3.3 as required by applicable law.
The Customer’s documented instructions include this Agreement, the Subscription Offer, the Customer’s configuration and use of the Cloud Services, and any lawful written instructions given by the Customer.
9.4 The Customer is responsible for ensuring that:
9.4.1 it has a lawful basis for collecting and using Personal Data contained in Customer Data;
9.4.2 it has provided all required notices to Data Subjects;
9.4.3 its instructions to DSL comply with Data Protection Legislation; and
9.4.4 it does not upload Personal Data to the Cloud Services in breach of Data Protection Legislation.
9.5 DSL processor obligations. DSL shall:
9.5.1 ensure that persons authorised to process Personal Data are subject to confidentiality obligations;
9.5.2 implement appropriate technical and organisational measures to protect Personal Data;
9.5.3 assist the Customer, taking into account the nature of the processing, with Data Subject requests and compliance with the Customer’s security, breach notification and data protection impact assessment obligations;
9.5.4 notify the Customer without undue delay, and where reasonably practicable within 48 hours, after becoming aware of a Personal Data Breach affecting Customer Data;
9.5.5 at the Customer’s choice, delete or return Personal Data after termination of the Agreement, unless retention is required by law; and
9.5.6 make available information reasonably necessary to demonstrate compliance with this clause 9.
9.6 The Customer gives DSL general written authorisation to engage Sub-processors to provide the Cloud Services. DSL shall ensure that each Sub-processor is subject to written data protection obligations that are materially no less protective than those imposed on DSL under this clause 9. Customers may contact DSL using the contact details set out in this Agreement or on DSL’s website to request a current list of Sub-processors. DSL shall give reasonable notice of any material change to its Sub-processors. If the Customer objects on reasonable data protection grounds, the parties shall discuss the objection in good faith.
9.7 DSL may process Personal Data in New Zealand and other jurisdictions used by DSL or its Sub-processors, provided that any transfer of Personal Data outside the United Kingdom complies with Data Protection Legislation. The parties acknowledge that New Zealand is recognised by the United Kingdom as providing an adequate level of protection for Personal Data. Where Personal Data is transferred to a country that is not subject to a UK adequacy regulation, DSL shall ensure that appropriate safeguards are in place, such as the UK International Data Transfer Agreement, the UK Addendum to the EU Standard Contractual Clauses, or another transfer mechanism permitted by Data Protection Legislation.
9.8 The details of DSL’s processing of Personal Data under this Agreement are as follows:
- Subject Matter: provision of the Cloud Services.
- Duration: for the term of the Agreement and any post-termination retention period
- Nature and purpose: hosting, storage, analysis, reporting, backup, support, maintenance, security and operation of the Cloud Services.
- Types of Personal Data: Personal Data included in Customer Data, which may include names, business contact details, account details, project data, location data, report data and support communications.
- Categories of Data Subjects: Authorised Users, Customer personnel, Customer clients, contractors, suppliers and other individuals whose Personal Data is included in Customer Data.
9.9 If there is any conflict between this clause 9 and any other provision of this Agreement concerning the processing of Personal Data, this clause 9 shall prevail.
10. INDEMNITY
10.1 The Customer shall indemnify DSL against claims, losses and costs arising from: Customer Data; the Customer’s or Authorised Users’ breach of this Agreement; unlawful use of the Cloud Services; infringement of third-party rights by Customer Data; or the Customer’s breach of Data Protection Legislation, provided that:
10.1.1 the Customer is given prompt notice of any such claim;
10.1.2 DSL 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 DSL shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Cloud Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality. DSL shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims and all related losses, costs and expenses, provided that:
10.2.1 DSL is given prompt notice of any such claim;
10.2.2 the Customer provides reasonable co-operation to DSL in the defence and settlement of such claim, at DSL's expense; and
10.2.3 DSL is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, DSL may procure the right for the Customer to continue using the Cloud Services, replace or modify the Cloud Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on five 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 DSL, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
10.4.1 a modification of the Cloud Services or Documentation by anyone other than DSL;
10.4.2 the Customer's use of the Cloud Services or Documentation in a manner contrary to the instructions given to the Customer by DSL; or
10.4.3 the Customer's use of the Cloud Services or Documentation after notice of the alleged or actual infringement from DSL or any appropriate authority; or
10.4.4 the Customer's breach of this Agreement.
10.5 This clause 10 and clause 11.3.2 state the Customer's sole and exclusive rights and remedies, and DSL's (including DSL's employees', agents' and subcontractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in this Agreement:
11.1.1 the Customer assumes sole responsibility for results obtained from the use of the Cloud Services and the Documentation by the Customer, and for conclusions drawn from such use. DSL shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to DSL by the Customer in connection with the Cloud Services, or any actions taken by DSL at the Customer's direction.
11.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the greatest extent permitted by applicable law, excluded from this Agreement.
11.1.3 the Cloud Services and the Documentation are provided to the Customer on an "as is" basis.
11.2 Nothing in this Agreement excludes the liability of DSL for:
11.2.1 death or personal injury caused by DSL's negligence;
11.2.2 fraud or fraudulent misrepresentation; or
11.2.3 any matter in respect of which it would be unlawful for DSL to exclude or restrict liability.
11.3 Subject to clause 11.1 and clause 11.2:
11.3.1 DSL shall have no liability for any loss of profits, loss of business, depletion of goodwill 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; and
11.3.2 DSL's total aggregate liability to the Customer (including in respect of any indemnity in this Agreement), in respect of all breaches of duty occurring within any contract year shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, DSL's total liability for those claims shall not exceed the single highest annual cap for those contract years.
11.3.3 In clause 11.3.2:
11.3.3.1 the cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
11.3.3.2 a contract year means a 12 month period commencing on the Effective Date or any anniversary of it; and
11.3.3.3 the total charges means all sums paid by the Customer and all sums payable under this Agreement (including Subscription Fees) in respect of services actually supplied by DSL whether or not invoiced to the Customer.
11.4 References to liability in this clause 11 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12. TERM AND TERMINATION
12.1 The Agreement shall commence on the Effective Date and continue for the Initial Subscription Term. Unless otherwise stated in the Subscription Offer, the Agreement will automatically renew for successive Renewal Periods unless either party gives written notice of non-renewal at least 14 days before the end of the then-current term. The Customer may cancel its subscription at any time, but cancellation will take effect at the end of the then-current billing period. Unless expressly stated otherwise in the Subscription Offer or required by law, Subscription Fees are non-refundable and the Customer remains liable for all fees incurred up to the effective date of cancellation or termination.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
12.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
12.2.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
12.2.3 the other party repeatedly breaches any of the terms of this Agreement 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 the terms of this Agreement;
12.2.4 the other 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), obtaining a moratorium, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.2.5 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.2.6 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
12.3 On termination of this Agreement for any reason:
12.3.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Cloud Services and the Documentation;
12.3.2 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;
12.3.3 DSL may destroy or otherwise dispose of any of the Customer Data in its possession , unless DSL receives, no later than 30 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. DSL shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by DSL in returning or disposing of Customer Data; and
12.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
12.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13. FORCE MAJEURE
13.1 DSL shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control (provided that the Customer is notified of such an event and its expected duration), including:
13.1.1 strikes, lock-outs or other industrial disputes (whether involving the workforce of DSL or any other party);
13.1.2 failure of a utility service or transport or telecommunications network;
13.1.3 act of God, war, riot, civil commotion or malicious damage;
13.1.4 compliance with any law or governmental order, rule, regulation or direction;
13.1.5 accident;
13.1.6 breakdown of plant or machinery;
13.1.7 fire, flood, storm;
13.1.8 default of suppliers or subcontractors or
13.1.9 epidemic or pandemic.
14. CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
15. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. WAIVER
16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18. SEVERANCE
18.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
18.2 If any provision or part-provision of this Agreement is deemed deleted under clause 18.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
20. ASSIGNMENT
20.1 The Customer shall not, without the prior written consent of DSL, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
20.2 DSL may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.
21. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as 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 limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. THIRD PARTY RIGHTS
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
23. COUNTERPARTS
23.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
23.2 Transmission of the executed signature page of a counterpart of this Agreement by email (in PDF, JPEG or other agreed format, including via electronic signature platforms) shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement.
23.3 No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
24. NOTICES
24.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
24.1.1 sent by email to the notice contact specified in the Subscription Offer or, if none is specified, to the primary account contact for the Customer and to hello@datanest.earth for DSL.
24.2 Any notice shall be deemed to have been received:
24.2.1 if delivered by hand, at the time the notice is left at the proper address;
24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
24.2.3 if sent by international post, at 9.00 am on the fifth Business Day after posting; or
24.2.4 if sent by email at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
26. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).