This Peak License Agreement is effective from 20/07/22
Peak License Agreement
THIS Peak License Agreement (the “Agreement”) is made between
1. PEAK AI Limited (registered number 09307701) whose registered office is at Floor 6, Manchester Goods
Yard, 6 Goods Yard Street, Manchester, England, M3 3BG (“we”, “us” or “our”); and
2. the customer as specified in the Order Form or if no Order Form is set out, the organization that you represent when accessing Peak or the organization to whom we commence providing any Services to (“you” or “your”),
(each a “party” and together, the “parties”) and will become effective on the earlier of the date (i) you access Peak (ii) we start providing any Services or (iii) the date the Order Form is fully signed by both parties (“Commencement Date”)
INTRODUCTION
(A) This Agreement sets out the general terms and conditions which you have agreed in relation to us providing you with access to Software and providing you with Services from time to time.
(B) All such access and Services will be documented in an Order Form entered into between you and us which incorporates the provisions of this Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
1.1. the following words and expressions have the following meanings:
| “Access Date” | the date on which we grant you with access to Peak by providing you with the Access Details; |
| “Access Details” | a unique log in ID and password specific to you to give your Users access to Peak; |
| “Application” | a collection of code and Peak infrastructure designed to fulfill a specific purpose; |
| “Background IPR” | in respect of each party, any Intellectual Property Rights owned by or licensed to that party:
including in any items that are contributed by or on behalf of each party for use in relation to the creation of a Peak Application; |
| “Business Day” | a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales, save in relation to clause 27.2 where it shall be a day that is not a usual non-working day, public or bank holiday in the location of receipt of a notice; |
| “Confidential Information” | the meaning given to it in clause 6.1; |
| “Contract Year” | in respect of each Order Form, the period of 12 calendar months starting on the Effective Date and each successive period of 12 calendar months, each starting on an anniversary of the Effective Date; |
| “Customer Application” | any Application that is built on Peak solely and independently by you (including any modifications or additions which you make to it) which is developed to accommodate the needs of your specific business and is not designed for re-use by any other person; |
| “Customer Data” | the data inputted by you, your Users, or us on your behalf for the purpose of using (or facilitating the use of) an Application or Peak, preparing any Insight Report or providing you with any other data analytical services, but excluding any data that is owned by us or any of our licensors; |
| “Data Processing Addendum” | the data processing addendum at https://peak.ai/data-processing-addendum/ |
| “Data Protection Laws” | all applicable laws, regulations and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, breach notification or the processing of Personal Data, including without limitation, to the extent applicable, the General Data Protection Regulation, Regulation (EU) 2016/679, the UK GDPR; the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., the (Indian) Information Technology Act 2000, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 and all other legislation and regulatory requirements in force and as amended from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); |
| “Deliverables” | any Service Add-ons or any Insight Report; |
| “Discloser” | has the meaning given to it in clause 6.1; |
| “Documentation” | the operating manuals, user instruction manuals, training manuals and technical literature, in human-readable form which relate to the use and operation of the Peak Software that we make available to you as we consider necessary for the proper use of the Peak Software; |
| “Effective Date” | in relation to any Order Form, the Effective Date set out in that Order Form; |
| “Force Majeure Event” | any event or circumstance which prevents, delays, hinders, or impairs a party from performing any of its obligations under this Agreement provided always that: (i) the relevant event or circumstance is beyond the reasonable control of the party claiming relief; and (ii) the occurrence of the relevant event or circumstance could not have been reasonably foreseen by the party claiming relief at the time of entering into this Agreement; |
| “Group Companies” | In respect of a person, its Holding Companies, its Subsidiaries and the Subsidiaries of any of its Holding Companies from time to time (“Holding Company” and “Subsidiary” having the meanings set out in section 1159 Companies Act 2006), and for the purposes of section 1159(1) a company (the first company) will be treated as a member of another company if:
|
| “Index” | the United Kingdom’s index for the change in prices for goods and services over time as published by the Office for National Statistics as the ‘Consumer Prices Index’; |
| “Initial Term” | in relation to an Order Form, the Initial Term set out in that Order Form; |
| “Insight Report” | any insight report which you commission us to prepare on your behalf identified in an Order Form.; |
| “Intellectual Property Rights” | all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in Know-How, registered trade marks, registered designs, utility models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, reexaminations and substitutions; |
| “Know-How” | formulae, algorithms, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions including those generated by Peak or any Application through its own artificial intelligence; |
| “Liability” | liability arising out of or in connection with this Agreement and/or any Order Form, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under this Agreement or any Order Form and/or any defect in all or any part of the Software, Services, Deliverables, or Documentation or any of it or any part of it, in each case however caused including by negligence; |
| “Licensed Capacity” | the Platform Edition to which you have subscribed under an Order Form; |
| “Malicious Code” | any program that contains malicious code or infiltrates or damages a system without the owner’s or user’s informed consent or is designed to do so or which is hostile, intrusive or possesses the ability to create replicas of itself (a so called “auto-reproduction program”) within other programs or operating system areas, or which is capable of spreading copies of itself wholly or partly to other computer systems or networks and any back door, time bomb, logic bomb, Trojan horse, worm, drop dead device, virus or other software routines or hardware components that permit unauthorized access to or the unauthorized disablement or erasure of any software or data; |
| “Open Source Software” | third party software code which is supplied with, incorporated in or aggregated with:
and which is licensed upon terms which materially conform to either (i) the open source definition laid down by the body known as the Open Source Initiative or (ii) any generally accepted replacement for or alternative to such open source definition; |
| “Order Form” | an Order Form which expressly refers to and incorporates this Agreement and which relates to your access to and use of Software and any other Services which we agree to provide you with which, when signed by you and us (or deemed accepted in accordance with its terms), will form a legally binding contract between you and us, separate from all others; |
| “Peak” | our cloud-based multi-tenant AI platform which enables us, our customers and our partners or affiliates to create and consume Applications; |
| “Peak Application” | any Application that is built by us and (where applicable) you in collaboration and made available by us to you, under the terms of an Order Form including all modifications and additions made by us and/or (where applicable) you from time to time; |
| “Peak Blocks” | workflows, APIs, web applications and any other functionality which we may create and make available on Peak from time to time to enable the building of Applications; |
| “Peak Policies” | all webpages referred to in this Agreement (and each a “Peak Policy”); |
| “Peak Software” | Peak and any Peak Applications that you are entitled to access and use as set out in an Order Form but excluding any Third Party Software; |
| “Personal Data” | includes “personal data,” “personal information,” “sensitive personal data” or “personally identifiable information” and similar terms and such terms shall have the same meaning as defined by the applicable Data Protection Laws; |
| “Platform Edition” | the Platform Edition of Peak you have selected under an Order Form and includes a prescribed number or set of authorized features to which you can access and use as described in the Platform Edition Policy; |
| “Platform Edition Policy” | the platform edition policy set out at https://peak.ai/legal/platform-edition-and-credits-policy/, as may be varied from time to time; |
| “Platform Fee” | the annual subscription amount payable by you to us for the right to access and use the Platform Edition in accordance with this Agreement, as set out in an Order Form; |
| “Privacy Policy” | the privacy policy at https://peak.ai/privacy-policy/ and as may be updated by us from time to time; |
| “Renewal Period” | (a) the initial period of 12 consecutive months immediately following the expiry of the Initial Term or (b) each subsequent period of 12 consecutive months; |
| “Representatives” | In respect of each party, that party’s Group Companies and its and their officers, directors, employees and professional advisers and, where we are the Recipient, this also includes any other person authorized by us including our agents, consultants, contractors and subcontractors; |
| “Review Date” | the first and each subsequent anniversary of an Effective Date; |
| “Service Add-ons” | the services (if any) identified as Service Add-ons in an Order Form; |
| “Service Level Agreement” | the service level agreement at https://peak.ai/service-level-agreement-2/ and as may be updated by us from time to time; |
| “Services” | any services including Service Add-ons, which we may provide from time to time as set out in the Service Level Agreement, (but excluding the Software, Third Party Software and Third Party Services); |
| “Software” | Peak Software, Third Party Software, Tooling, Peak Blocks, and Customer Applications; |
| “Special Category Data” | has the meaning given to it in the applicable Data Protection Laws; |
| “Suspension” | a suspension of access to all or any part of the Software in accordance with clause 14 of this Agreement; |
| “Term” | in relation to an Order Form, its Initial Term together with any applicable Renewal Periods; |
| “Third Party License” | any terms which govern the use of or access to Third Party Software; |
| “Third Party Services Terms” | terms applicable to each such Third Party Service; |
| “Third Party Services” | content (whether static or dynamic content) from, and integrations (including, without limitation, through APIs) with third party websites, applications and services, and content actively made available by a third party using the Software; |
| “Third Party Software” | any software which is to be supplied with the Peak Software, Tooling or Peak Blocks made available by us under clause 11 and which is owned by a person other than us and (in each case) including any Open Source Software unless specified otherwise; |
| “Tooling” | any internal packages we develop and use to accelerate our work, and Open Source Software used by us in the delivery of any Services and Applications to you; |
| “UK GDPR” | has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; and |
| “User” | means those individual employees and independent contractors of yours who are authorized by you to use the Software and who may be given the Access Details for so long as they remain authorized by you. |
1.2. the Peak Policies form part of this Agreement and will have the same force and effect as if set out in the body of this Agreement and any reference to this Agreement will include the Peak Policies;
1.3. where terms are defined in the Peak Policies, they will have the same meaning when used in the Order for or this Agreement, unless the context requires otherwise;
1.4. unless the context otherwise requires:
1.4.1. references to the singular include the plural and vice versa;
1.4.2. references to a “person” include any individual, body corporate, association, partnership, firm, trust, organization, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4.3. references to an Order Form are references to the Order Form which incorporates the terms of this Agreement;
1.5. references to any legislation or legislative provision will include any subordinate legislation made under it and will be construed as references to such legislation, legislative provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.6. any reference in this Agreement to trade marks, designs or design rights includes an EU trade mark, registered Community design or unregistered Community design and any United Kingdom equivalent right granted;
1.7. any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;
1.8. references to “in writing” or “written” include email but no other methods of electronic messaging;
1.9. references to this Agreement or any other agreement or document are references to such agreement or document as varied from time to time and as assigned or novated from time to time in accordance with its terms;
1.10. any reference to a time of day is to London, United Kingdom time; and
1.11. an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party.
2. AGREEMENT STRUCTURE
2.1. The terms set out in this Agreement will be incorporated into each Order Form as if written out in full in that Order Form.
2.2. Each Order Form will be a separate legally binding contract and constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it. Each party acknowledges and agrees that on entering into this Agreement or any Order Form it does not rely on, and will have no remedy in respect of, any statement, vision and scope or discovery documentation, representation, warranty, forecast, marketing or presentation slides or materials, information or other understanding (whether negligently or innocently made) other than as expressly set out in this Agreement or the Order Form. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
2.3. To the fullest extent permitted by law, the parties have agreed the express provisions of this Agreement and each Order Form in place of all warranties, conditions, undertakings, terms and obligations concerning the relevant transaction which might otherwise be implied by statute, common law, custom, trade usage, course of dealing or otherwise (including any implied term as to fitness for purpose).
2.4. If there is a conflict between the provisions of this Agreement and the provisions set out in an Order Form, the provisions of that Order Form will prevail to the extent of the inconsistency, but only in relation to that Order Form. If there is a conflict between the provisions of this Agreement and any Peak Policy, the provisions of the relevant Peak Policy will prevail to the extent of the inconsistency.
3. TERM
3.1. The term of this Agreement will begin on the Commencement Date and will continue in full force and effect until terminated in accordance with clause 4.2.
3.2. Each Order Form will take effect on its Effective Date and continue in full force and effect for the Initial Term and each Renewal Period. At the end of the Initial Term and each Renewal Period, each Order Form will renew for the Renewal Period unless terminated in accordance with clause 3.3. If we have agreed any discounted fees with you which apply to the Initial Term of any Order Form, that Order Form will be renewed on the basis of the full listed fee before that discount has been applied and increased in accordance with clause 5.5.
3.3. You may terminate any Order Form by giving us at least 30 days’ prior written notice, such notice to take effect at the end of the Initial Term or the then current Renewal Period as the case may be.
4. TERMINATION
4.1. Termination of an Order Form
4.1.1.Either party may terminate an Order Form with immediate effect by giving written notice to the other if:
4.1.1.1. that other party has committed a material irremediable breach of its obligations under that Order Form; or
4.1.1.2. that other party has committed a material remediable breach of its obligations except for breach of clause 5 (Fees and Payment) under that Order Form and has not remedied that breach within thirty (30) days of receiving notice by the non-defaulting party specifying the breach (and warning of its intention to terminate);
4.1.1.3. if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other party or if the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding-up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party) or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other party; or
4.1.1.4. that other party ceases or threatens to cease to carry on business or to trade.
4.1.2. We may terminate any Order Form by giving you 30 days’ written notice if:
4.1.2.1.you have failed to pay any sums due under the Order Form and have not remedied that breach within ten (10) days of receiving notice from us; or
4.1.2.2.there is a change in your control (with control as defined in section 1124 of the Corporation Tax Act 2010) which is reasonably deemed by us to be detrimental to our business or other existing relationships including where there is a conflict of interest or exclusivity arrangement.
4.2. Termination of this Agreement
4.2.1. Either party may terminate the Agreement with immediate effect by written notice to the other if:
4.2.1.1. that other party has committed a material irremediable breach of its obligations under the Agreement;
4.2.1.2. that other party has committed a material remediable breach of its obligations except for breach of clause 5 (Fees and Payment) and has not remedied that breach within thirty (30) days of receiving notice by the non-defaulting party specifying the breach (and warning of its intention to terminate);
4.2.1.3. if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other party or if the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding-up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party) or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other party; or
4.2.1.4. that other party ceases or threatens to cease to carry on business or to trade.
4.2.2. We may terminate this Agreement by giving you 30 days’ written notice if:
4.2.2.1. you have failed to pay any sums due under this Agreement and have not remedied that breach within 10 days of receiving notice from us; or
4.2.2.2. there is a change in your control (with control as defined in section 1124 of the Corporation Tax Act 2010) which is reasonably deemed by us to be detrimental to our business or other existing relationships including (without limitation) where there is a conflict of interests or exclusivity arrangement.
4.2.3. Provided no Order Forms are in force, either party may terminate this Agreement for convenience on thirty days’ written notice to the other party.
5. FEES AND PAYMENT
5.1. The fees payable under each Order Form will be set out in that Order Form. All fees quoted are exclusive of value added tax and any other sales tax which you will pay in addition upon receipt of a valid tax invoice.
5.2. You will pay all fees due under each Order Form to us in accordance with this clause 5 in full without deduction, withholding, set-off or counterclaim.
5.3. You understand and agree to the terms of our Platform Edition Policy and agree that:
5.3.1. the Platform Fee:
5.3.1.1. is based on the allowed usage contracted in the form of Licensed Capacity under the applicable Order Form and not on your actual usage;
5.3.1.2. will be automatically recurring on an annual basis for the duration of the Term;
5.3.1.3. is non-cancellable and non-refundable; and
5.3.2. you have committed to the Licensed Capacity provided in the Order Form for the duration of the Term and that you must purchase additional Licensed Capacity in the event and at the time your actual use exceeds the agreed Licensed Capacity.
5.4. The Platform Fee will be due on the Effective Date and annually thereafter on each anniversary of the Effective Date for the duration of the Term, unless otherwise stated in the relevant Order Form.
5.5. With effect from each Review Date the Platform Fee will be adjusted by a percentage equal to the percentage increase in the level of the Index calculated by comparing the last published Index figure before the Review Date and the last published Index figure before the previous Review Date (or, in the case of the first Review Date, the last published Index figure before the Effective Date).
5.6. You may increase your Licensed Capacity at any time during the Term by entering into a new Order Form with us. Any such new Order Form which increases your Licensed Capacity will run coterminous with the Order Form that contains your initial Licensed Capacity unless otherwise stated in the relevant Order Form.
5.7. The fees for any Service Add-ons will be a one-off fixed fee as set out in the Order Form and will be due and payable on the Effective Date of such Order Form.
5.8. Each invoice will be payable by you within 30 days following the date on which the invoice is issued or otherwise when due in accordance with this Agreement. All payments will be made in available cleared funds by electronic transfer in the currency and to the bank account set out in such invoice.
5.9. If any sum payable under this Agreement or any Order Form is not paid on or before the due date for payment, we will be entitled to charge you interest on that sum at 5% per annum above the base lending rate from time to time of Barclays Bank plc from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.
5.10. If you fail to make any payment due to us under this Agreement or an Order Form on or before the due date, we will be entitled to:
5.10.1. suspend performance of our obligations owed to you under that Order Form; and/or
5.10.2. suspend your and any User’s access to all or any part of the Software
until payment of all overdue sums has been made and cleared in full.
6. CONFIDENTIALITY
6.1. In this Agreement “Confidential Information” means, subject to clause 6.8:
6.1.1. any information (whether written, oral, in electronic form or in any other media) that:
6.1.1.1. is disclosed by or on behalf of a party (the “Discloser”) to the other party (the “Recipient”) or any of the Recipient’s Representatives and that relates (in whole or in part) to the Discloser or any of the Discloser’s Group Companies or its (or their) businesses; or
6.1.1.2. relates to the Customer Data, source code and/or structure of all or any part of the Software (excluding any Open Source Software);
6.1.2. the terms of or subject matter of this Agreement and any Order Forms or any discussions or documents in relation to it, and in respect of such information each party will be deemed to be a Recipient; and
6.1.3. any trade secret (as defined in regulation 2 of the Trade Secrets (Enforcement, etc. Regulations 2018)) where the Discloser or any of the Discloser’s Group Companies is the trade secret holder,
but excluding information that is trivial or by its nature immaterial.
6.2. The Recipient will at all times, but subject to clauses 6.3, 6.4 and 6.8:
6.2.1. keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by this clause 6;
6.2.2. use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement or an Order Form; and
6.2.3. keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own confidential information and will never exercise less than reasonable care.
6.3. The Recipient may disclose Confidential Information to the Recipient’s Representatives who need access to that Confidential Information in order for the Recipient’s obligations under this Agreement to be performed and the Recipient’s rights under this Agreement to be exercised, and where we are the Recipient, for our internal business purposes from time to time, provided that before any such disclosure the Recipient must make that Representative aware of the fact that the Confidential Information is confidential and secret and the obligations of confidentiality contained in this clause 6 and the Recipient will procure that such Representative will be bound by confidentiality obligations to the Recipient that are substantially equivalent to those contained in this clause 6. The Recipient will be liable for the acts and omissions of its Representatives in respect of the Discloser’s Confidential Information as if they were acts or omissions of the Recipient.
6.4. In respect of your Customer Data which is Confidential Information, subject to clause 6.5 and 6.8, we will not sell, disclose or share that Customer Data in its original, identifiable form with any other person without your agreement
6.5. Subject to clause 7 and clause 6.6, the Recipient and its Representatives may disclose Confidential Information if and to the extent that the disclosure is:
6.5.1. required by law, by an order of a court of competent jurisdiction or by any securities exchange, listing authority, governmental or regulatory body to which the Recipient (or the relevant Representative of the Recipient) is subject or to which the Recipient (or the relevant Representative of the Recipient) submits;
6.5.2. required for the Recipient (or the relevant Representative of the Recipient) to report an offense to a law enforcement agency;
6.5.3. required for the Recipient (or the relevant Representative of the Recipient) to report misconduct or a serious breach of regulatory requirements to any person with a regulatory responsibility in respect of the matters in question;
6.5.4. a protected disclosure by the Recipient (or relevant Representative of the Recipient) under the Public Interest Disclosure Act 1998; or
6.5.5. required for the Recipient (or the relevant Representative of the Recipient) to cooperate with a criminal investigation or prosecution
and each such disclosure is a “Regulatory Disclosure”.
6.6. The Recipient undertakes to the Discloser that it will (and will procure that each Representative of the Recipient will), to the extent that it is lawful to do so, notify the Discloser of any required Regulatory Disclosure, and only disclose the minimum amount of Confidential Information that is necessary for the applicable requirement to be complied with.
6.7. The Discloser, one of the Discloser’s Group Companies or its (or their) licensors own all right, title and interest in the Discloser’s Confidential Information.
6.8. Subject to clause 6.9, the Recipient’s obligations under this clause 6 will not extend to Confidential Information which:
6.8.1. the Discloser agrees in writing is not Confidential Information;
6.8.2. at the time of disclosure was in the public domain or subsequently enters the public domain other than as the direct or indirect result of a breach of this clause 6 by the Recipient or any of the Recipient’s Representatives;
6.8.3. the Recipient can prove:
6.8.3.1. has been received by the Recipient (or one of the Recipient’s Representatives) at any time from a third party who did not acquire it in confidence and who is free to make it available to the Recipient (or the relevant Representative); or
6.8.3.2. was independently developed by the Recipient or one of the Recipient’s Representatives without any breach of this Agreement.
6.9. Clause 6.8.3 will not apply to the Confidential Information referred to in clause 6.1.2.
7. PERSONAL DATA
7.1. It is your sole responsibility to advise us if Customer Data contains any Personal Data prior to sharing or providing us with access to that Customer Data in writing and to identify the nature and other particulars of that Personal Data including, without limitation, whether that Personal Data comprises Special Category Data in accordance with the applicable Data Protection Laws.
7.2. You acknowledge and agree that we cannot be held responsible for detecting any Personal Data and/or anonymizing that Personal Data contained within your Customer Data which shall be your sole responsibility.
7.3. Following notice under clause 7.1, if and to the extent that we process any Personal Data on your behalf when performing our obligations under this Agreement and any Order Form, you acknowledge and agree that you will be the data controller and we will be a data processor in respect of such Personal Data and in any such case, that Personal Data will be processed in accordance with our Privacy Policy and applicable Data Processing Addendum as may be varied from time to time, the terms of which you acknowledge and agree.
7.4. If and to the extent that you fail to provide us with the correct notice and details of any Personal Data and/or fail to anonymise any Personal Data under clause 7.2, you acknowledge and agree that we will not be in breach of clause 7.3 or the terms of the Data Processing Addendum which shall not be deemed to apply.
8. CUSTOMER DATA
8.1. You shall own all right, title and interest in and to all Customer Data that is not Personal Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8.2. The Software may enable Users to submit, upload or display Customer Data to or on the Software or via the Software to third party software. You acknowledge that we do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability, usefulness, timeliness or other attributes of any Customer Data, nor do we review, test or attempt to verify the accuracy or currency of any Customer Data. As between you and us, you are solely responsible for:
8.2.1. determining the suitability of any Customer Data for its intended use by you (including any necessary testing); and
8.2.2. its intended use, and verifying the authenticity, integrity, security and accuracy of Customer Data prior to using it.
8.3. We may, in our sole discretion:
8.3.1. modify and add Customer Data made available through the Software; and
8.3.2. remove, disable or restrict access to any Customer Data (but we are not responsible for any failures or delays in removing, disabling or restricting access to any Customer Data, unless otherwise set out in this Agreement), that may be considered harmful, inaccurate, unlawful or otherwise objectionable or if we are required by any third party rights holder to remove Customer Data, or receive information that Customer Data may violate applicable law or third party rights.
9. CUSTOMER’S OBLIGATIONS
9.1. You:
9.1.1. will and will procure that each User will comply with all laws, statutes, regulations, byelaws and codes of practice applicable to your access, use, export or re-export of the Software and the Documentation;
9.1.2. will and will procure that each User will comply with any of our reasonable security requirements in relation to accessing and use of the Software, including taking all steps to protect and keep confidential all Access Details, and prohibiting unauthorized access to the Software. All access and use made using any account we make available to you or a User will be deemed to have been made by or on behalf of you.;
9.1.3. will not and will procure that each User will not access, store, distribute or transmit any material during your use of the Software that:
9.1.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
9.1.3.2. facilitates illegal activity;
9.1.3.3. depicts sexually explicit images;
9.1.3.4. promotes violence;
9.1.3.5. is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or
9.1.3.6. is otherwise illegal or causes damage or injury to any person or property;
and we reserve the right, without prejudice to our other rights, to disable your access or use or any User’s access or use to any material that breaches the provisions of this clause (or in our discretion acting reasonably suspend access to and use of the Software);
9.1.4. will be responsible for obtaining and maintaining any necessary hardware, communications links and software to access and use the Software in accordance with this Agreement;
9.1.5. will not and will procure that each User will not introduce any Malicious Code to the Software and maintain measures to prevent unauthorized access to and the introduction of Malicious Code to the Software;
9.1.6. will not and will procure that each User will not use or access Peak in such a way to cause the Software or our provision of the Software, to be interrupted, damaged, rendered less efficient or in any way impaired;
9.1.7. acknowledge and agree that we retain the right to audit and/or monitor your and your Users’ usage of the Software from time to time to:
9.1.7.1. review your compliance with your obligations pursuant to this Agreement; and/or
9.1.7.2. review the operation of the Software and, where appropriate, make improvements;
9.1.8. will maintain complete, up to date, reproducible and accurate backup copies of all computer programs, data, and electronic records which you hold, including Customer Data; and
9.1.9. will have in place and maintain adequate and appropriate security measures to safeguard the Software from access or use by unauthorized persons;
9.2. You acknowledge you are relying solely upon your own skill and judgment and not that of ours in determining the suitability of the Software and the fitness for any general or specific purpose of the Software and you will bear full responsibility and risk for the usefulness, performance and results of any decisions that you make when using the Software.
10. SUPPLY OF SOFTWARE AND THIRD PARTY SOFTWARE
10.1. We will:
10.1.1. provide you with Access Details to access Peak and the features which your Platform Edition includes; and
10.1.2. provide access to Peak and the Peak Applications for the duration of the Term
in accordance with the terms of the Order Form, this Agreement and the Service Level Agreement.
11. LICENSE
11.1. Subject to clause 13.3, with effect from the Access Date, we grant to you a personal, non-exclusive, non-transferable, worldwide license to use and permit Users to use, the object code version of the Software (excluding Open Source Software and Customer Applications):
11.1.1. only for the purpose of your internal business;
11.1.2. to the limits of the Licensed Capacity;
11.1.3. in accordance with
11.1.3.1. the Service Level Agreement;
11.1.3.2. the applicable Order Form; and
11.1.3.3. this Agreement
for the duration of the Term, unless terminated earlier in accordance with the terms of the Order Form or this Agreement.
11.2. The license granted at clause 11.1 is subject to the following obligations and restrictions (and for the purposes of this clause 11.2, references to Software exclude Open Source Software and Customer Applications):
11.2.1. you will not and will procure that each User will not copy or reproduce in any way all or any part of the Software;
11.2.2. save to the extent expressly permitted by law, you will not and will procure that each User will not decompile, reverse engineer, decode or disassemble all or any part of the Software or translate it into any other computer language or attempt to do any of these things;
11.2.3. you will not and will procure that each User will not remove or alter any copyright notices or similar proprietary devices, including any electronic watermarks or other identifiers, that may be incorporated in the Software;
11.2.4. you will not and will procure that each User will not interfere with or attempt to circumvent the operation of any device whose function is to prevent the unlawful copying or use of all or any part of the Software;
11.2.5. you will not and will procure that each User will not attempt to ascertain or list the source programs or source code relating to all or any part of the Software;
11.2.6. you will not permit any other person to use all or any part of the Software nor will you use, and you will procure that no User will use, all or any part of the Software for the benefit of any other person;
11.2.7. you will not and will procure that each User will not assign, novate, sub-license, rent, lease, sell, pledge, charge, transfer or otherwise dispose of or grant rights over or out of the license granted at clause 11.1 or all or any part of the Software and will not attempt to do any of those things; and
11.2.8. you will notify us as soon as you become aware of any actual or attempted unauthorized use or access of all or any part of the Software by any person.
11.3. Without prejudice to our other rights and remedies, if any unauthorized use is made of all or any part of the Software (excluding Open Source Software and Customer Applications (or any part of them)) by you or, due to your act, omission or default, by any other person, you will immediately be liable to pay us an amount equal to the charges which we would have levied had we authorized the grant of a license for such unauthorized use at the beginning of the period of such unauthorized use, together with interest at the rate provided for in clause 5.9 from the date of the commencement of such unauthorized use to the date of payment.
11.4. We grant to you, a personal, nonexclusive, non-transferable, worldwide, royalty free, perpetual license to display and distribute any results or output of the Software (excluding any Open Source Software) that is produced using Customer Data to any third party provided that:
11.4.1. any such results or output contain an attribution to us, whether by the inclusion of our logo, or a phrase “powered by Peak” or similar, and you are granted rights to use our logo provided that any such use will be in strict compliance with any instructions or guidelines which we provide; and
11.4.2. any such results or output contain a disclaimer stating that “Peak AI Limited is not responsible or liable for this material and the use of or reliance on this material by any person is at such person’s own risk”.
11.5. Subject to payment of all applicable fees by you to us, we grant to you a personal, nonexclusive, non-transferable, worldwide, royalty free license to, use, execute, reproduce, display, perform and internally distribute the Deliverables set out in such Order Form to such extent as is necessary to enable you to make use of the Software and/or to receive the benefit of the Services.
12. DOCUMENTATION
12.1. You will use any Documentation provided by us for the purpose of using the Peak Software in accordance with the terms and conditions of this Agreement and Order Form only and will not permit any other person to use the Documentation in any way whatsoever.
12.2. We will use reasonable endeavors to notify you of any changes in Third Party Software that impact the Documentation when we are made aware of the change by the Third Party Software licensor or through the Open Source Software community as the case may be.
13. THIRD PARTY SERVICES AND THIRD PARTY SOFTWARE
13.1. The Software may contain links to Third Party Services, including the ability for you to access, utilize and/or make changes to such Third Party Services via all or any part of the Software. You agree that:
13.1.1. we provide links to, content from, and integrations with, such Third Party Services solely as a convenience on an ‘as is, where is’ basis and:
13.1.1.1. subject to clause 21.3, have no responsibility or Liability for the content or availability of such Third Party Services; and
13.1.1.2. do not review, test or attempt to verify the accuracy or currency of any Third Party Services;
13.1.2. we do not endorse, support, represent, warrant or guarantee the completeness, truthfulness, accuracy, reliability, usefulness, timeliness or other attributes of such Third Party Services (or any products or other services associated therewith);
13.1.3. access to any Third Party Services linked to the Software is at your own risk, and we are not responsible for the accuracy or reliability of any services, information, data, opinions, advice, content or statements which comprise such Third Party Services; and
13.1.4. your use of such Third Party Services will be subject to the Third Party Services Terms and you having in place appropriate rights to access such Third Party Service in accordance with those Third Party Services Terms and where required by the applicable Third Party Services Term, you granting any applicable permissions to us which may be necessary for the operation of the Third Party Services in conjunction with the Software.
13.2. You represent, warrant and undertake to us that:
13.2.1. you will at all times comply with (and will procure the compliance of your Users with) all Third Party Services Terms;
13.2.2. your and any Users’ use of, access to, or interaction with, any Third Party Services through or in connection with the Software will not place us or any of our affiliates or third party suppliers in breach of any Third Party Services Terms; and
13.2.3. you and your Users have all necessary rights, consents and/or notices in place, to use, access or interact with any Third Party Services through or in connection with the Software.
13.3. The Peak Software may contain proprietary and/or Third Party Software components that are subject to Third Party Licenses. You will and will procure that each User will:
13.3.1. where prompted or required, enter into each Third Party License before or upon installation of the relevant Third Party Software and, if you enter into a Third Party License, clause 11.1 will not apply to the Third Party Software which is the subject of that Third Party License and we will be under no obligation and subject to clause 21.3 have no Liability under clause 11.1 in respect of that Third Party Software;
13.3.2. comply with the terms of all Third Party Licenses at all times; and
13.3.3. have all necessary rights, consents and/or notices in place, to use, access or interact with any Third Party License through or in connection with the Peak Software.
Your failure to enter into any Third Party License or your breach of any Third Party License will constitute a material breach of this Agreement for the purpose of clause 4.1.1.1 and 4.2.1.1 of which you will immediately notify us. As soon as such failure or breach occurs, irrespective of whether you have notified us or not, you will no longer have any right to use or continue to use the Third Party Software which is the subject of that Third Party License. In the event and to the extent only of any conflict or inconsistency between any Third Party License and clauses 11.1 and 11.2, the relevant Third Party License will take precedence.
13.4. You will indemnify us against all losses (including all direct, indirect and consequential losses), liabilities, costs, damages and expenses that we do or will incur or suffer, all claims or proceedings made, brought or threatened against us by any person and all losses (including all direct, indirect and consequential losses), liabilities, costs (on a full indemnity basis), damages and expenses that we do or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with your failure to enter into, or your breach of any of your obligations under any Third Party License (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations).
14. SUSPENSION
14.1. We may directly or indirectly, suspend or otherwise deny your and any User’s access to, or use of, all or any part of the Software without, subject to clause 21.3 incurring any resulting obligation or liability, if we reasonably determine or suspect that:
14.1.1. there is a threat or attack on all or any part of the Software;
14.1.2. your or any User’s use of all or any part of the Software disrupts or poses a security risk to us, all or any part of the Software or to any of our other customers or vendors;
14.1.3. you, or any User, is using all or any part of the Software for fraudulent or illegal activities;
14.1.4. your, or any User’s use of all or any part of the Software has or will place us in breach of any Third Party License or any other arrangements we have with any provider of Third Party Software;
14.1.5. any event which gives us a right to terminate an Order Form or this Agreement under this Agreement has occurred;
14.1.6. the provision of all or any part of the Software to you or any User is or becomes prohibited by applicable law or any Third Party License;
14.1.7. the use of all or any part of the Software by you or any User in accordance with the terms and conditions of this Agreement and the applicable Order Form infringes or potentially infringes the Intellectual Property Rights of a third party;
14.1.8. any of our vendors and/or any Third Party Software provider has suspended or terminated our access to or use of Third Party Software or any other third party services or products required to enable us to provide, or you to access, all or any part of the Software; or
14.1.9. you or any User is in breach (or is using the Software in breach) of an Order Form or this Agreement.
14.2. We will provide written notice of any Suspension and provide updates regarding resumption of access to the Software (as applicable) as soon as reasonably practical following any Suspension. We will resume providing access to all or any part of the Software as soon as reasonably possible after the event giving rise to the Suspension is cured. We will, subject to clause 21.3, have no Liability for any Suspension. Clause 14.1 and this clause 14.2 do not limit any of our other rights or remedies, whether at law, in equity, or under the Agreement (including, without limitation, our rights to terminate this Agreement or any Order Form).
14.3. We reserve the right, in our sole discretion, to charge you, and you agree to pay, any charges, fees or other costs incurred by us in resuming the provision of access to the Software following a Suspension, that is caused by, or attributed to, you or any User.
15. UPDATES
15.1. We may from time to time make updates to the Software on our own accord (including to improve the security of the Software or otherwise make technical changes to the Software) or as in accordance with our Service Level Agreement (“Updates”).
15.2. Once you are given access to an Update, that Update will form part of the Software.
15.3. You will notify us of any significant Peak Software errors or bugs that you are aware of and we will diagnose any errors in good faith and cooperation.
16. COMMUNITY
You will be granted access to our data science and artificial intelligence community portal on our website https://community.peak.ai/ (“Peak Community”) which is included as part of your Platform Edition on or shortly after being provided access to Peak. You will receive an email from us with log-in details to your account but will be able to opt out at any time in accordance with our Privacy Policy. Your use of Peak Community will be governed independently of this Agreement on the terms made available on the Peak Community website from time to time.
17. WARRANTY
17.1. We warrant to you that for a period of 90 days from the Access Date (the “Warranty Period”), the Peak Software made available by us will materially conform to the Documentation.
17.2. If, at any time during the relevant Warranty Period, you become aware of a breach of the warranty at clause 17.1, you will:
17.2.1. give us written notice of the breach, before expiry of the Warranty Period; and
17.2.2. provide us with all information and assistance which we may reasonably require to investigate the alleged breach, including sufficient information to allow us to recreate the alleged non-conformity.
17.3. Following receipt of any notice provided pursuant to clause 17.2 we will, at our option:
17.3.1. repair the Peak Software (or part of it);
17.3.2. replace the part of the Peak Software that breaches the warranty at clause 17.1; or
17.3.3. terminate your right to use the Software (or part of it) by giving you at least 30 days’ written notice and we will refund any charges paid for such Software (less a reasonable sum in respect of your use of the Software prior to termination).
17.4. Subject to clause 21.3, our only Liability for breach of the warranty at clause 17.1 will be as set out in clause 17.3.
17.5. Your only remedy for breach of the obligation at clause 17.3 will be in damages.
17.6. The warranty at clause 17.1 will apply to any Peak Software which is repaired or replaced under clause 17.3 for the remainder of the original Warranty Period.
17.7. Our obligations at clause 17.3 will not apply if:
17.7.1. all or any part of the Software, has been improperly configured by any person other than us;
17.7.2. you have failed to comply with any of your obligations under this Agreement and/or the applicable Order Form;
17.7.3. all or any part of the Software has been altered or modified by any person other than us;
17.7.4. all or any part of the Software has been subject to misuse, neglect or accident;
17.7.5. you have failed to use all or any part of the Software in compliance with the Documentation; or
17.7.6. all or any part of the Software has been used in conjunction with any hardware or software other than our approved environments or the Third Party Software.
18. SERVICES
If and to the extent we provide you with any Services, we will do so in accordance with our Service Level Agreement.
19. INTELLECTUAL PROPERTY RIGHTS
19.1. Reserved Rights
19.1.1. You acknowledge and agree that your only right to use the Software is as set out in clause 11 and that title to and all Intellectual Property Rights in or relating to the Software (excluding any Open Source Software and Customer Applications), the Documentation and any other software that we make available to you, are and will remain our exclusive property, or that of our licensors or the relevant proprietor as the case may be and nothing in this Agreement will restrict or prevent our use of any of the foregoing in any way.
19.2. Rights in Customer Applications and Customer Data
19.2.1. Subject to clause 19.1.1, we acknowledge and agree you will at all times own all Intellectual Property Rights in the Customer Data and the parts of Customer Applications that are not Peak Blocks.
19.2.2. We grant to you a royalty-free, worldwide, non-exclusive, perpetual, irrevocable, non-assignable, non-sublicensable license to use any Peak Blocks that are part of a Customer Application in conjunction with such Customer Application or any other application created solely and independently by you to replace such Customer Application provided that you do not commercialize, reverse engineer, decompile, disassemble, adapt, copy, or otherwise use such Peak Blocks for any purpose except for the purpose which the Customer Application was built for.
19.2.3. You grant to us a royalty-free, worldwide, non-exclusive, perpetual, irrevocable, assignable, sublicensable license to use the Customer Data and the parts of Customer Applications that are not Peak Blocks for the purpose of making the Software available to you, providing you with Services, and for any other purpose we may deem reasonably necessary, subject always to clause 6 (Confidentiality).
19.3. Rights in Improvements and Peak Applications
19.3.1. Without prejudice to clause 19.1, if you create any improvement or modification to or adaptation of the Peak Software, Peak Blocks, Tooling (that is not Open Source Software) or Documentation (“Improvements”) then title to and all Intellectual Property Rights in the Improvements will be our exclusive property and nothing in this Agreement will restrict or prevent our use of the Improvements in any way.
19.3.2. You, with full title guarantee and free of all charges, liens, encumbrances and Licenses hereby:
19.3.2.1. assign to us (by way of present assignment of the future copyright) all future copyright in the Improvements and Peak Applications and any documentation relating to them; and
19.3.2.2. agree to assign to us, subject to clause 19.4, all other Intellectual Property Rights in the Improvements and Peak Applications and any documentation relating to them, such assignment to take place immediately and automatically upon the creation of such Intellectual Property Rights
throughout the world for the whole term of all such Intellectual Property Rights assigned under clauses 19.3.2.1 and 19.3.2.2, including any extensions or renewals of such Intellectual Property Rights, and including the right to sue for damages and other remedies for infringements of Intellectual Property Rights in the Improvements and Peak Applications and any documentation relating to them whether occurring before, on or after the Commencement Date.
19.3.3. You will subject to clause 19.4:
19.3.3.1. at your own cost, execute all such documents and do all such acts and things as we may request from time to time in order to secure the full right, title and interest of ours in the Intellectual Property Rights in the Improvements and Peak Applications and any documentation relating to them;
19.3.3.2. procure the irrevocable waiver of all moral rights (and any broadly equivalent rights which may exist in any territory of the world) in the Improvements and Peak Applications and any documentation relating to them; and
19.3.3.3. deliver up to us, on request, all physical materials that embody the Improvements (in source and object code form) and Peak Applications and any documentation relating to them in your possession or under its control.
19.4. Rights in Background IPR
19.4.1. The Background IPR of each party will remain the absolute unencumbered property of that party (or its licensor(s), if applicable). Save as expressly provided by this Agreement, neither party will make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Background IPR of the other party except as expressly permitted by the terms of this Agreement.
19.4.2. Each party grants to the other party a royalty-free, non-exclusive, worldwide license (or sub-license, if applicable) to use its Background IPR for the purposes of and solely to the extent required for performing its obligations under this Agreement, which license is non-assignable and non-sublicensable, and will be perpetual and irrevocable for the Term
19.4.3. You grant to us, a royalty-free, non-exclusive, worldwide license (or sub-license, if applicable) to use your Background IPR to enable us to use any Peak Application for any purposes, which license is assignable, sublicensable, perpetual, and irrevocable.
19.4.4. Each party warrants that it is able to contribute, provide and/or make available its Background IPR in accordance with the terms of this Agreement and to grant the license(or sub-License, if applicable) of its Background IPR set out in clause 19.4.2 and 19.4.3.
19.5. You further acknowledge and agree that you will not register or use any of the Intellectual Property Rights owned or licensed by us in our own right as proprietor
20. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
20.1. Provided that you have complied with clause 20.3, we will pay the reasonable costs and damages:
20.1.1. awarded against you; or
20.1.2. agreed to be paid in a settlement agreement,
in any claim or action against you by any third party that the use of the Peak Software by you in accordance with the terms and conditions of this Agreement and the applicable Order Form infringes the Intellectual Property Rights of that third party in the United Kingdom.
20.2. If an injunction is granted as a result of a claim or action within the scope of clause 20.1 and that injunction prevents your use of the Peak Software, we will, at our option and expense:
20.2.1. obtain for you the right to continue using the Peak Software in accordance with the terms and conditions of this Agreement and any applicable Order Form free from any liability for such infringement;
20.2.2. modify, substitute or replace the Peak Software or any part of it so as to avoid the infringement, without adversely affecting or limiting the specification or functionality of the Peak Software;
20.2.3. refund to you the part of the fees that relates to the Peak Software which you are unable to use as a result of the claim or action; or
20.2.4.terminate the relevant Order Form immediately by giving written notice to that effect to you, in which case your access to the Peak Software will cease and we will refund the portion of fees paid under the relevant Order Form for time that has not passed.
20.3. If you become aware of a claim or action within the scope of clause 20.1 or any matter that might give rise to such a claim or action:
20.3.1. you will no later than 5 Business Days after becoming aware of a claim or action within the scope of clause 20.1 or any matter that might give rise to such a claim or action, give written notice to us of that fact (stating in reasonable detail the nature of the claim or action or matter and, if practical, the amount claimed) and consult with us in respect of that claim or action or matter that may give rise to a claim or action. Failure to give a notice in accordance with this clause in respect of a claim or action or matter that may give rise to a claim or action will mean that we have no liability under clause 20.1 in respect of that claim or action or matter;
20.3.2. you will not settle or compromise or make any admission of liability, agreement or compromise in relation to that claim or action or matter that may give rise to a claim or action;
20.3.3. you will at all times disclose in writing to we all information and documents relating to the claim or action or the matter that might give rise to a claim or action;
20.3.4. you will take all such actions as we may request to dispute, resist, defend, appeal, settle, compromise, remedy or mitigate that claim or action or matter that might give rise to a claim or action including using professional advisers nominated by us and we will be responsible to reimburse you for all reasonable professional costs properly incurred by you as a result of such a request by us;
20.3.5. if we ask you to, you will allow us to have exclusive conduct of all proceedings in relation to the claim or action in your name and on your behalf, at our cost.
20.4. To the extent that any claim or action is caused or exacerbated by:
20.4.1. any modification to all or any part of the Software made by any person other than us;
20.4.2. your breach of the terms of this Agreement or an Order Form;
20.4.3. any use of the Software which is made after commencement of the claim or action or (if earlier) you becoming aware of the alleged infringement;
20.4.4. use of the Software in combination with hardware or software other than Third Party Software;
20.4.5. information, data or programs which you furnish in the course of the supply and maintenance of the Software;
20.4.6. information, data or programs which you furnish whilst using the Software;
20.4.7. actions which we take at your request;
20.4.8. your failure to use, replace or modify all or any part of the Software provided by us;
20.4.9. use of the Software in a manner for which it was not designed; or
20.4.10. an Intellectual Property Right in which you have a direct or an indirect interest (including where you or any Group Company of yours is a customer of that Intellectual Property Right),
clause 20.1 will not apply and our actions at clause 20.2 will be at your expense, rather than ours.
20.5. Subject to clause 21.3, this clause 20 states our entire Liability arising from an infringement (or alleged infringement) of an Intellectual Property Right of a third party
21. EXCLUSIONS AND LIMITATIONS OF LIABILITY
21.1. Subject to clause 21.3, our maximum aggregate Liability under any Order Form and this Agreement which arises from any acts, omissions, events or circumstances which occur in any one Contract Year will be limited to the amount of the fees payable by you to us during that Contract Year
21.2. We will have no Liability to you for any indirect or consequential loss or for any:
21.2.1. loss of or account of profits;
21.2.2. loss of revenue, loss of production or loss of business;
21.2.3. loss of goodwill, loss of reputation or loss of opportunity;
21.2.4. loss of anticipated savings or loss of margin;
21.2.5. liability owed by you to a third party;
21.2.6. loss of use or value of any data or software;
21.2.7. wasted management, operational or other time;
21.2.8. wasted expenditure incurred in reliance upon the anticipated performance of this Agreement or any Order Form by us. For the avoidance of doubt, the term “wasted expenditure” does not include the fees paid under an Order Form; and
21.2.9. loss or damage arising out of any failure by you to keep full and up to date security copies of any computer programs, data or electronic records including Customer Data, held or used by or on behalf of you,
in each case whether direct, indirect or consequential and subject always to clause 21.3.
21.3. Nothing in this Agreement or any Order Form will operate to exclude or restrict any Liability of a party:
21.3.1. that cannot be excluded or restricted in this Agreement or any Order Form in respect of death or personal injury resulting from negligence by operation of Section 2(1) Unfair Contract Terms Act 1977;
21.3.2. for any breach of clause 6 (Confidentiality);
21.3.3. for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
21.3.4. for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability
Any Liability of ours which falls within this clause 21.3 will not be taken into account in assessing whether the financial limit in clause 21.1 has been reached.
21.4. Nothing in this clause 21 will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
21.5. You acknowledge and agree that the exclusions and limitations of liability set out in this clause 21 are an integral part of the basis on which we provide the Software (excluding Open Source Software and any Customer Applications) to you and the Software (excluding Open Source Software and any Customer Applications) would not be made available to you and your Users in the absence of such exclusions and limitations of liability.
21.6. The exclusions from and limitations of liability contained in this Agreement will survive the termination of the Agreement and any Order Form.
21.7. Notwithstanding any other term of this Agreement or Order Form, we will not be in breach of this Agreement or any Order Form to the extent our failure to perform or delay or any defect in performance of its obligations under the Agreement or Order Form arises as a result of:
21.7.1. a breach of your obligations under this Agreement or an Order Form, whether by you or your Representatives, agents or subcontractors;
21.7.2. us relying on any incomplete or inaccurate data provided by you or a third party on your behalf; or
21.7.3. us complying with any of your instructions or requests or those of your Representatives, agents or subcontractors
22. CONSEQUENCES OF TERMINATION
22.1. Upon expiration or termination of any Order Form:
22.1.1. the rights and remedies of either party in respect of any claim which accrued before the Order Form came to an end will not be affected (in particular, you will remain liable for any outstanding fee payments);
22.1.2. any provisions of the Order Form and this Agreement which expressly or by implication are intended to come into or remain in effect when the Order Form ends, will survive, including clauses 1, 2, 5, 6, 7, 8, 13.4, 16, 19, 20, 21, 22, 26, 27 and 28;
22.1.3. subject to clause 19.2, all rights of access and use in relation to Software provided under or in connection with such Order Form or through the placing of any Credits will come to an end; and
22.1.4. every person who has had a right of use and access under the provisions of such Order Form or through the placing of any Credits will destroy all copies of the Documentation and confirm that this has been done by written notice given to us within 60 days of the date of expiration or termination;
22.1.5. each party will comply with any obligations set out in the Data Processing Addendum (if relevant).
22.2. Upon expiration or termination of the Agreement:
22.2.1. all Order Forms shall terminate;
22.2.2. the rights and remedies of either party in respect of any claim which accrued before the Agreement came to an end will not be affected (in particular, you will remain liable for any outstanding fee payments);
22.2.3. any provisions of the Agreement which expressly or by implication are intended to come into or remain in effect when the Agreement ends, will survive, including clauses 1, 2, 5, 6, 7, 8, 13.4, 16, 19, 20, 21, 22, 26, 27 and 28;
22.2.4. the Recipient will, if requested to do so, return to the Discloser all of the Discloser’s Confidential Information (including all copies and extracts) and all other property of the Discloser (whether tangible or intangible) in its possession or control provided that it may retain any of the Discloser’s Confidential Information which it has to keep to comply with any applicable law;
22.2.5. the Recipient will cease to use the Discloser’s Confidential Information;
22.2.6. each party will comply with any obligations set out in the Data Processing Addendum (if relevant).
23. ASSIGNMENT
23.1. Neither you nor we shall be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under this Agreement or any Order Form without the other party’s prior written consent other than in accordance with clause 23.2.
23.2. We will be entitled to assign or transfer any of our rights under this Agreement or any Order Form to any of our Group Companies.
24. FORCE MAJEURE
24.1. A party will not be in breach of this Agreement or otherwise liable to the other party for any failure to perform or delay in performing its obligations under this Agreement (excluding any obligations under clause 5 of this Agreement):
24.1.1. to the extent that such failure or delay is due to a Force Majeure Event or the direct effects of a Force Majeure Event; or
24.1.2. to the extent that such failure or delay is due to the other party’s failure to perform or delay in performing any of its obligations under this Agreement due to a Force Majeure Event or the direct effects of a Force Majeure Event.
25. SUBCONTRACTING
25.1. We will be entitled to subcontract any of our obligations under this Agreement or any Order Form save that we will be fully liable for meeting our obligations and the acts and omissions of our subcontractors. You will cooperate with any subcontractor nominated by us and afford them the same level of co-operation that you would afford us.
25.2. You will not be entitled to subcontract any of your obligations under this Agreement or any Order Form without our prior written consent.
26. PUBLIC ANNOUNCEMENTS AND MARKETING
26.1. By entering into this Agreement, you agree to us using your name, logo or trademarks for the purposes of any public release or public announcement regarding this Agreement.
26.2. The parties will work together in good faith to: (i) participate in a partnership interview to discuss feedback on their relationship under this Agreement; (ii) issue a mutually acceptable press release announcing the relationship; and (iii) issue a testimonial and case study, during the course of the Agreement. These interviews and statements may be used by us in printed publications, multimedia presentations, on websites or in any other distribution media.
26.3. Following entry into the Agreement, within 14 days of our request, the parties will, when reasonably practical, participate in a debrief interview to discuss feedback on our sales process, onboarding process, the Software and our marketing positioning. We may use the interview for our own commercial purposes.
27. NOTICE
27.1. Subject to clause 27.5, any notice given under or in connection with this Agreement or any Order Form will be in the English language, marked for the attention of the specified representative of the party to be given the notice and:
27.1.1. sent to that party’s address by pre-paid first-class post or mail delivery service providing proof of delivery; or
27.1.2. sent by email to that party’s email address.
Our address, email address and representative are set out below:
Floor 6 Manchester Goods Yard
6 Goods Yard Street
Manchester
England
M3 3BG
For the attention of the Company Secretary and Head of Legal.
We will use your address, email address and representative details who are set out in the Order Form or otherwise on record with us at the time of sending any notice.
27.2. Any notice given in accordance with clause 27.1 will be deemed to have been served, at 9.00am on the second Business Day after the date of sending.
All references to time and Business Days in this clause 27.2 are to that time and those Business Days in the location of receipt.
27.3. If a notice is given in accordance with clause 27.1.2 the title to the email will begin with the words “Service of Notice”.
27.4. To prove service of a notice or communication it will be sufficient to prove that the provisions of clause 27.1 were complied with.
27.5. This clause 27 will not apply to notices given under any clause which contains its own procedure for the giving or sending of notices, nor will it apply to the service of any proceedings or other documents in a legal action to which the procedural rules of the courts of England and Wales commonly known as the Civil Procedure Rules apply.
28. GENERAL
28.1. A delay in exercising or failure to exercise a right or remedy under or in connection with this Agreement or any Order Form will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default
28.2. If any term of this Agreement or any Order Form is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from such Agreement or Order Form and this will not affect the remainder of such Agreement or Order Form which will continue in full force and effect. In this event the parties will use their best endeavors to agree a valid and enforceable term to replace the severed term which, to the maximum extent possible, achieves the parties’ original commercial intention and has the same economic effect as the severed term, within 30 days of the term being severed.
28.3. Subject to clause 28.4, no variation to this Agreement or any Order Form will be effective unless it is in writing and signed by a duly authorized representative on behalf of each of the parties
28.4. We may vary any of the Peak Policies from time to time without your consent, provided that such variation will not have a material adverse effect on you and such variation will take effect from the date referenced in that relevant Peak Policy. We may also vary this Agreement to ensure compliance with new or amended legislation and such variation will take effect from the date which is three Business Days after the day when we notify you of the variation in accordance with this Agreement.
28.5. The parties do not intend that any term of this Agreement or any Order Form will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party.
28.6. Our rights and remedies set out in this Agreement and any Order Form are in addition to and not exclusive of any rights and remedies provided by law.
28.7. This Agreement and each Order Form and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
28.8. Subject to clause 28.9, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement or any Order Form (including in relation to any non-contractual obligations) and each party waives any objection to, and agrees to submit to, the jurisdiction of the courts of England and Wales
28.9. Any party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.