These Terms and Conditions, the relevant Order Form or accepted Quote executed between the Client (“Subscriber”) and Securely Technology Limited (dba Complyance, “Licenser”), the Data Processing Agreement (the “DPA”), which can be found here, the Service Level Agreement (“SLA”), which can be found here, constitute a single legally binding Agreement under which Subscriber and Licenser shall engage. For avoidance of doubt, if the provisions of these Terms and Conditions and the provisions of the relevant Order Form or Quote conflict, the relevant Order Form or Quote shall prevail.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Authorized Users: those employees, agents and independent contractors of the Subscriber who are authorized by the Subscriber to use the Services and the Deliverables under the terms of the Agreement.
Business Day: a day other than a Saturday, Sunday or federal public holiday.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 or clause 9.6.
Deliverables: any outputs of the Services and any other documents, products, and materials provided by the Licenser to the Subscriber and any other documents, products and materials provided by the Licenser to the Subscriber in relation to the Services.
Effective Date: the date of the signature of the Order Form or quote (if transacting through a reseller or Partner).
Fees: has the meaning given in the Order Form.
Licenser Materials: means all intellectual property, works, products, documentation, information, data and other material of any kind (including computer software and firmware, designs and specifications) provided or made available by or on behalf of the Licenser in connection with the Deliverables and/or Services and/or this agreement and which, in any event, do not constitute Developed Materials or Third Party Materials.
Order Form: the order form at the beginning of this Agreement.
Renewal Period: the period described in clause 12.1.
Services: the subscription services provided by the Licenser to the Subscriber under this Agreement, as more particularly described in the Order Form.
Software: any software provided by the Licenser as part of the Services.
Subscriber Materials: all intellectual property, works, products, documentation, information, data and other material of any kind provided or made available by or on behalf of the Subscriber in connection with the Deliverables and/or Services and/or this Agreement.
Subscriber Personnel: the Subscriber's officers, employees, workers, contractors and agents and/or those of its sub-contractors.
Term: has the meaning set out in the Order Form.
User Subscription: the user subscription purchased by the Subscriber pursuant to clause 8.1 which entitles Authorized Users to access and use the Services and receive the Deliverable in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or program) 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 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 adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2.1 Subject to the Subscriber purchasing the User Subscription in accordance with clause 3 and clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Licenser hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorized Users to use the Services and receive the Deliverables during the Subscription Term solely for the Subscriber's internal business operations.
2.2 In relation to the Authorized Users, the Subscriber undertakes that:
2.3 The Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
The Licenser reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber's access to any material that breaches the provisions of this clause.
2.4 The Subscriber shall not:
2.5 The Subscriber shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Deliverables and, in the event of any such unauthorized access or use, promptly notify the Licenser.
2.6 The rights provided under this clause 2 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
3.1 The Licenser shall, during the Subscription Term, provide the Services and make available the Deliverables to the Subscriber on and subject to the terms of this Agreement.
3.2 The Licenser will, as part of the Services, provide the Subscriber with the Licenser's standard support services (more detail on standard support services can be found in the Licenser's SLAs documentation). The Subscriber may purchase enhanced support services separately at the Licenser's then current rates.
4.1 Subject to clause 4.2, all Intellectual Property Rights in the Licenser Materials and all intellectual property, works, products, documentation, information, data and other material of any kind acquired or created by or on behalf of the Licenser for the Subscriber, conceived or created in the course of or in relation to the provision of the Services ("Developed Materials"), shall, at all times, be and remain the exclusive property of the Licenser, its service providers or its licensors. The Licenser grants the Subscriber a license to use the Developed Materials, and to use any Licenser Materials that are embedded or incorporated into the Deliverables, to such extent as is necessary to enable the Subscriber to make reasonable use of the Deliverables and Services.
4.2 All Intellectual Property Rights in the Subscriber Materials shall, at all times, be and remain the exclusive property of the Subscriber or its third party licensors. The Subscriber grants the Licenser, for the term of this Agreement, a limited, non-transferable, royalty-free, non-exclusive license to use the Subscriber Materials only for the purpose of carrying out its obligations in accordance with this Agreement.
4.3 Each party may use or re-use any skills, knowledge, experience, technical information, inventions, ideas or techniques of whatever nature utilized or gained by such party in the course of performing its obligations under this agreement ("Know-how"), for its own benefit or the benefit of third parties, provided that such Know-how does not involve:
The Subscriber acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Licenser makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Subscriber, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Subscriber and the relevant third party, and not the Licenser. The Licenser recommends that the Subscriber refers to the third party's website terms and conditions, cookies policy and privacy policy prior to using the relevant third party website. The Licenser does not endorse or approve any third party website nor the content of any of the third-party website made available via the Services.
6.1 The Licenser shall:
6.2 The Licenser:
6.3 This Agreement shall not prevent the Licenser from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing Deliverables, products and/or services which are similar to those provided under this Agreement.
6.4 The Licenser warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.1 The Subscriber shall:
8.1 The Subscriber shall pay the Fees to the Licenser for the User Subscription in accordance with this clause 8 and the Order Form.
8.2 To the extent that this Agreement provides that all or part of the Services are chargeable on the basis of ongoing, recurring or periodic charges (for example, a monthly or annual fee), such charges shall be subject to periodic review and may be increased by the Licenser at the end of the Term, with thirty (30) days' prior written notice to the Subscriber.
8.3 Unless otherwise expressly provided in this agreement, all amounts referred to in this agreement are exclusive of applicable sales taxes which, where chargeable by the Licenser, shall be payable by the Subscriber at the rate and in the manner prescribed by law. They are also exclusive of any other applicable taxes, duties, imposts, levies and governmental charges of any kind (except for taxes exclusively attributable to the Licenser's income), which the Subscriber shall be liable to pay to the Licenser.
8.4 The Licenser shall invoice the Subscriber for the amounts due in accordance with this Agreement. Where the Licenser has agreed to extend credit to the Subscriber, the Subscriber must pay each invoice within thirty (30) days of the invoice date. The Subscriber must pay each invoice, in full, by the due date for payment, without deduction, set off or withholding of any kind.
8.5 Unless the Subscriber disputes an invoice on reasonable grounds, the Licenser may charge interest on all sums outstanding beyond the due date of the relevant invoice. Such interest shall be charged from the due date until the date of payment (including after any judgment has been obtained) at the rate of 2% per annum.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
9.2 Subject to clause 9.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 The Subscriber acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Licenser's Confidential Information.
9.6 The Licenser acknowledges that the Subscriber Materials is the Confidential Information of the Subscriber.
9.7 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.
9.8 The above provisions of this clause 9 shall survive termination of this Agreement, however arising.
10.1 The Subscriber shall defend, indemnify and hold harmless the Licenser 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 Subscriber's use of the Services and/or Deliverables, provided that:
10.2 The Licenser shall defend the Subscriber against any claim that the Subscriber's use of the Services or Deliverables in accordance with this Agreement infringes any patent effective as of the Effective Date, copyright, trademark, or database right, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:
10.3 In the defense or settlement of any claim, the Licenser may procure the right for the Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days' notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.
10.4 In no event shall either party, its employees, agents and sub-contractors be liable to the other party to the extent that the alleged infringement is based on:
11.1 Except as expressly and specifically provided in this Agreement:
11.2 Nothing in this Agreement excludes the liability of the Licenser:
11.3 Subject to clause 11.1 and clause 11.2:
12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Term. At least four (4) months prior to the expiry of the Term, we will notify you of any proposed changes to the non-discounted fees for the following year. For avoidance of doubt, any renewal will be based on the non-discounted cost.
12.2 At the end of each Term, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a "Renewal Period"), unless:
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the "Subscription Term".
12.3 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:
12.4 On termination of this Agreement for any reason:
The Licenser shall have no liability to the Subscriber 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, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Licenser or any other party), failure of a utility service or transport or telecommunications network, 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 Licensers or sub-contractors, provided that the Subscriber is notified of such an event and its expected duration.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
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.
17.1 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.
17.2 If any provision or part-provision of this Agreement is deemed deleted under clause 17.1, 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.
This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.1 The Subscriber shall not, without the prior written consent of the Licenser, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 The Licenser 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 this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize 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).
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
22.1 Any notice required to be given under this Agreement 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 or by email to an email address as specified by that party.
22.2 Any notice shall be treated as having been delivered: if sent by hand, when delivered; if sent by email, when sent; and if sent by registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting).
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles.
Each party irrevocably agrees that the state and federal courts located in the State of Delaware 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).
