Terms Of Service
TERMS AND CONDITIONS OF SERVICE
Each of Detected and the Customer shall be a party and together the parties for the purposes of this Agreement.
INTERPRETATION OF WORDS AND PHRASES
In this Agreement, the following terms shall have the following meanings:
“Authorised Users”: means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.3. “Business Day”: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. “Business Hours”: means 9.00 am to 6.00 pm local UK time, each Business Day. “Change of Control”: shall be as defined as the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly. “Confidential Information”: means all information of a confidential nature (in whatever form) which is received or acquired (whether directly or indirectly) by a party or its Authorised Users in connection with this Agreement, including: any know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind; all information produced, developed or derived from information disclosed pursuant to this Agreement; all information agreed to be, or marked as, confidential; or any information a party knows, or could reasonably be expected to know, is confidential but excluding any information which: is or was already known or available to a party, otherwise than pursuant to or through breach of any confidentiality obligation owed to the other party; is or becomes known, within the public domain other than through any breach of this Agreement (save that any publicly available information shall be classified as Confidential Information where it is compiled in a form that is not in the public domain); is disclosed to a party without any obligation of confidence to the other party by an individual or entity which is not itself under or in breach of any obligation of confidentiality; is developed by or on behalf of a party in circumstances where the developing party has not had direct or indirect access to the information disclosed by the other party, provided that satisfactory evidence of the same is provided to the disclosing party; or the parties agree in writing does not constitute Confidential Information. “Customer Data”: means the data (including Personal Data): (i) inputted by the Customer or its Authorised Users; (ii) inputted by users which are not authorised but which gain access to the Services through an act or omission of the Customer or an Authorised User; or (iii) inputted by Detected on the Customer's behalf for the purpose of the Customer’s use of the Services or otherwise facilitating the Customer's use of the Services. “Data Protection Laws”: means, as binding on either party or the Services: the Data Protection Act 2018; the UK General Data Protection Regulation; the Privacy and Electronic Communications Regulations 2003; any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing. “Documentation”: means any documents made available to the Customer by Detected which sets out a description of the Services and the user instructions for the Services. “Effective Date”: means the date set out in Part 1 (Cover Sheet). “Implementation Fees”: means Detected’s fees for the Implementation Services as set out in Part 1 (Cover Sheet). “Implementation Services”: means the integration of Detected’s Services into Customer’s systems as detailed in Part 1 (Cover Sheet) and subject to payment of the Implementation Fees. “Initial Subscription Term”: means the initial term of this Agreement as set out in Part 1 (Cover Sheet). “Intellectual Property Rights”: means copyright, rights related to copyright such as moral rights and performers’ rights, patents, rights in inventions, rights in Confidential Information, know-how, trade secrets, trade marks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, data exclusivity rights, approvals, utility models, domain names, business names, rights in computer software, mask works, topography rights, the right to sue for infringement, unfair competition and passing off and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing. “Marketing Policy”: means the terms of any marketing policy which may be provided to Customer by Detected. “Personal Data”: shall have the meaning given to it in the Data Protection Laws. “Profiles”: means the Profiles of third party businesses which exist on the Customer’s platforms as enabled by the Services. Each Profile is used and purchased by the Customer in accordance with this Agreement. “Renewal Period”: means the period described in 13.1. “Services”: means the subscription services provided by Detected to the Customer under this Agreement. “Software”: means the online software applications provided by Detected as part of the Services. “Subscription Fees”: means the monthly fees payable by the Customer to Detected for the Profiles, as set out in Schedule 1. “Subscription Term”: means the Initial Subscription Term together with any subsequent Renewal Periods. “Support Services Policy”: means Detected's policy for providing support in relation to the Services as set out at Schedule 2 to this Agreement and such changes to that as may be notified to the Customer from time to time. “Virus”: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. “Vulnerability”: means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to the confidentiality, integrity, or availability of Customer Data and the term Vulnerabilities shall be construed accordingly.
Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. 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. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular. 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. 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. A reference to writing or written does not include e-mail, unless that email complies with clause 24 of this Agreement. 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. LICENCE GRANT AND SECURITY OBLIGATIONS
Subject to the Customer’s compliance with the terms and conditions of this Agreement, and subject to the Customer paying for, and Detected receiving in cleared funds, the Subscription Fees and any Additional Fees for the Services and the Profiles in accordance with this clause 2, clause 8.1, and Schedule 1, Detected grants to the Customer from the Effective Date, a non-exclusive, non-transferable and limited licence without the right to grant sublicences, to use the Services and the Documentation during the Subscription Term solely for the Customer's business operations as envisaged by this Agreement (and not, without limitation and for the avoidance of doubt, for on-sale or licensing of the services to other b2b/b2c platforms). You acknowledge that the provision of Detected’s Services contemplated under this Agreement does not include any services, systems or equipment required to access the internet (and that you are solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications and data transmission charges incurred by you in connection with use of the Documentation or the Services). The Customer undertakes that: each Authorised User shall keep a secure password for their use of the Services and Documentation, and that each Authorised User shall keep his password confidential. For operational and security reasons, Detected may require Authorised Users to make password changes at various time intervals; it will inform us immediately if an Authorised User’s ID or password has, or is likely to, become known to an unauthorised person, or is being or may be used in an unauthorised way; it shall maintain a written, up to date list of current Authorised Users and provide such list to Detected within 5 (five)Business Days of Detected's written request; prevent unauthorised access to the Detected platform, Services and/or Documentation; it shall permit Detected or Detected's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; if any of the audits referred to in 2.3(e) reveals that any password has been provided to any individual who is not an Authorised User, without prejudice to Detected's other rights and remedies as set out in this Agreement, the Customer shall promptly disable such passwords and Detected shall not issue any new passwords to any such individual; and if any of the audits referred to in 2.3(e) reveal that the Customer has underpaid Subscription Fees to Detected, without prejudice to Detected's other rights, the Customer shall pay to Detected an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1, as well as Detected’s costs and expenses associated with conducting the audit, within 10 Business Days of the date of the outcome of the relevant audit being notified to the Customer.
The Customer shall not: except as may be allowed by any applicable law which is incapable of exclusion by this Agreement, and except to the extent expressly permitted under this Agreement: copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; use the Services and/or Documentation to provide services to third parties; subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party; attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; act otherwise than in accordance with the Marketing Policy when undertaking any activity which could, directly or indirectly, impact Detected or its Services; or introduce or permit the introduction of any Virus or Vulnerability into Detected's network and information systems. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Detected. The rights provided under this clause 2 are granted to the Customer and its Authorised Users only and shall not be considered granted to any subsidiary or holding company of the Customer.
SERVICES Detected shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement. Detected shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: (i) any planned maintenance which would usually be carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and (ii) unscheduled maintenance performed outside Business Hours, provided that where possible Detected has used reasonable endeavours to give the Customer at least six hours’ notice in advance. Detected will, as part of the Services and at no additional cost to the Customer provide the Customer with Detected's standard customer support services during Business Hours in accordance with Detected's Support Services Policy in effect at the time that the Services are provided. Detected may amend the Support Services Policy in its sole and absolute discretion from time to time. Detected may choose to offer, and the Customer may then purchase, enhanced support services separately at Detected's then current rates. If Detected has agreed to provide the Customer with a free trial of the Services, then the Services will be provided on a limited basis. Whilst Detected reserves the right to change, remove or add the limitations it applies to free trials without notice to the Customer, the standard limitation shall be that a maximum of 25 businesses may be checked through use of the Services.
DATA PROTECTION Each party will ensure that it complies with the Data Protection Laws and this clause does not relieve, remove, replace or alter any party’s obligations with respect to it. Where Detected processes Personal Data on behalf of the Customer, the parties shall comply with Detected’s [Data Processing Agreement – INSERT LINK] (DPA).
THIRD PARTY PROVIDERS
SUPPLIER'S OBLIGATIONS Detected shall use reasonable endeavours to provide the Services substantially in accordance with the Documentation and with reasonable skill and care. The obligation at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the terms of this Agreement, or contrary to Detected's instructions, or modification or alteration of the Services by any party other than Detected or Detected's duly authorised contractors or agents. If the Services are not performed in accordance with clause 6.1, and where clause 6.2 doesn’t apply, the Supplier will use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of clause 6.1. To the best of Detected’s knowledge, the information provided through the Services, and any Documents provided in connection with them, is correct at the time of publication. However, it is possible that the information contains technical, typographical or other errors. The Customer is responsible for verifying the accuracy of any information Detected provides before drawing any conclusions or entering into any financial or other commitment based upon said information or conclusions. The Customer will further ensure that any third parties which use the Customer’s services and which may see information or draw conclusions from information originally supplied via or derived from the Services are responsible for verifying the accuracy of any such information before drawing any conclusions or entering into any financial or other commitment based upon said information or conclusions. Detected does not warrant that: the Customer's use of the Services will be uninterrupted or error-free; the Services will have a minimum uptime or availability; the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; the Software or the Services will be free from Vulnerabilities or Viruses; or the Software, Documentation or Services will comply with any heightened cybersecurity requirements unless required by applicable law. Detected is not responsible for any delays, delivery failures, or any other loss, damage or expenses resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. This Agreement shall not prevent the Customer from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement, provided however that such products, documentation and services are not developed contrary to clause 2.4, or with the assistance of Detected’s Confidential Information. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Detected shall be for Detected to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the any latest back-up of such Customer Data as Detected may have. Detected shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (including those third parties sub-contracted by Detected to perform services related to the Services and Customer Data maintenance). Save as set out in this clause 6, the Services and Documentation provided under this Agreement are provided as-is and any and all implied warranties are disclaimed to the fullest extent permitted by applicable laws.
CUSTOMER'S OBLIGATIONS The Customer shall: provide Detected with: (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by Detected In each case in order to provide the Services; without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Detected may adjust any agreed timetable or delivery schedule as reasonably necessary; ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement, and shall be responsible for any Authorised User's breach of this Agreement, as well as any breaches committed by users which are not authorised, but which gain access to the Services through an act or omission of the Customer or an Authorised User of the Customer; obtain and shall maintain all necessary licences, consents, and permissions necessary for Detected, its contractors and agents to perform their obligations under this Agreement, including, without limitation, the Services; ensure that its network and systems comply with the relevant specifications provided by Detected from time to time; and be, as between the parties, and to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Detected's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet. The Customer shall own all rights, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data, including that which is Personal Data. The Customer shall maintain appropriate insurances to cover its potential liabilities under this Agreement and provide evidence of the same to Detected on written request. The Customer shall not solicit, entice or induce, or endeavour to solicit, entice or induce, any Detected employee with a view to employing or engaging such a person during the Subscription Term or for a period of 6 (six) years following the Subscription Term. Each party shall, and shall procure that its personnel, comply with the Bribery Act 2010 and the Modern Slavery Act 2015 and any similar or analogous legislation.
CHARGES AND PAYMENT TERMS The Customer shall pay the Subscription Fees to Detected annually in advance for the Profiles and any Additional Fees in accordance with this clause 8 and Schedule 1 (Services and Subscription Fees). The Customer shall, prior to the Effective Date, provide to Detected valid, up-to-date and complete method of payment information in the form requested by Detected. As at the Effective Date of this Agreement, the following shall be required: (i) credit or debit card details; and (ii) any other relevant valid, up-to-date and complete contact and billing details. Unless expressly agreed otherwise in writing, the Customer hereby authorises Detected to bill such credit or debit card: (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period. If Detected has not received payment of any fees due and payable under this Agreement within 15 days after the due date, and without prejudice to any other rights and remedies of Detected: Detected may, without liability to the Customer, disable and/or suspend the Customer's password, account and access to all or part of the Services and Detected shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. All amounts and fees stated or referred to in this Agreement: shall be payable in pounds Sterling; are non-cancellable and non-refundable; and are exclusive of value added tax, which shall be added to Detected's invoice(s) at the appropriate rate. Upon 90 days' prior notice to the Customer, Detected shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Profiles purchased pursuant to paragraph 3 of Schedule 1, any support fees payable pursuant to clause 3.3 or Additional Fees and Schedule 1 shall be deemed to have been amended accordingly.
INTELLECTUAL PROPERTY The Customer acknowledges and agrees that Detected and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer, any Authorised User (or any user who is not authorised) any rights to, under or in, any Intellectual Property Rights or any other rights, assignment or licences in respect of or in any way concerning the Services or the Documentation. Furthermore, the Customer also acknowledges that Detected and/or its licensors shall own any developments, improvements or other Intellectual Property Rights arising from use of the Intellectual Property Rights licensed under this Agreement. The Customer shall, at the request and cost of Detected, perform (or procure the performance of) all further acts and things (including assist in any dispute),execute and deliver (or procure the execution or delivery of) all further documents which Detected reasonably considers necessary to give full effect to this Agreement (including this Clause 9) or to vest in Detected the benefit of the rights referred to in Clause 9.2 above, including registration of Detected as applicant or proprietor of those rights. The Customer shall not: use Detected’s Intellectual Property Rights for any purpose other than for that permitted by our Agreement; access all or any part of the Intellectual Property Rights in order to build a product or service which competes with all or any part of the Detected Intellectual Property Rights; or license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or otherwise make all or any part of the Portal or other Detected Intellectual Property Rights available for the benefit of third parties. The Customer grants to Detected a worldwide, royalty-free, transferable, non-exclusive right and licence to: use, copy, host, store, display, modify, adapt and reproduce any materials provided by the Customer and develop derivative works for the purposes of providing the Services for your benefit or otherwise to exercise our rights, remedies and obligations under our Agreement; and where necessary and in compliance with applicable law, sub-licence (or otherwise make available) the Customer Data to any subcontractors used by us, but only as required for the provision of the Services. Detected may use any feedback and suggestions for improvement relating to the Services provided by the Customer without charge or limitation (Feedback). Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Detected at the time the Feedback is first provided to Detected.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. Subject to clause 10.4, 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. 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. 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 written notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Detected's Confidential Information. Detected is hereby permitted to make an announcement publicly concerning the existence of the relationship between the parties, and the Customer shall be permitted to make a similar announcement with the prior written consent of Detected, however neither is permitted to make an announcement concerning the details of this Agreement or in the case of the Customer, publish of make available the results of searches conducted using the Services, without the prior written consent of the other party, 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. The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
The Customer is expressly advised to consider this clause 11 and clause 12 before entering into this Agreement.
The Customer shall defend, indemnify and hold harmless Detected against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation. Detected shall provide the Customer with prompt notice of such claim and provide reasonable co-operation in the defence and settlement of the claim (at the cost of the Customer). Subject to clause 11.5, Detected shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this Agreement infringes any Intellectual Property Right which exists as of the Effective Date, and shall indemnify the Customer for any costs finally awarded against the Customer in judgment or settlement of such claims, provided that: (a) Detected is given prompt written notice of any such claim; (b) the Customer provides all reasonable co-operation to Detected in the defence and settlement of such claim, at Detected's expense; and (c) Detected is given sole authority to defend or settle the claim. In the defence or settlement of any claim, Detected may at its discretion: (i) procure the right for the Customer to continue using the Services; (ii) replace or modify the Services so that they become non-infringing or; (iii) if such remedies are not reasonably available, terminate this Agreement on 3 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or any other additional costs whatsoever to the Customer. In no event shall Detected, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than Detected; (b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Detected; (c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Detected or any appropriate authority;(d) a combination of the Services with other software or systems; or (e) a claim where any such claim does not state with specificity that the Services are the basis of such claim. This clause 11 states the Customer's sole and exclusive rights and remedies in respect of third party Intellectual Property Rights infringement claims and Detected's (including Detected's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Rights.
LIMITATION OF LIABILITY
The Customer is expressly advised to consider this clause 12 and clause 11 above.
12.1 Except as expressly and specifically provided in this Agreement and subject to clause 12.2: (a) the Customer assumes sole responsibility for use of the Services and the Documentation and for any information obtained from the use of the Services or the Documentation, and for any conclusions drawn from such use or information, including relating to any third parties which use the Customer’s services and which may see information or draw conclusions from information originally supplied via or derived from the Services. Detected shall have no liability for any damage or other harm caused by any use, information or conclusions drawn, in connection with the Services or for any errors or omissions in any of the foregoing, or for any actions taken by Detected at the Customer's direction; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and (c) the Services and the Documentation, and all other information and instructions provided by Detected to the Customer are provided to the Customer on an "as is" basis. 12.2 Nothing in this Agreement excludes the liability of Detected for: (a) death or personal injury caused by Detected's negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be excluded or limited under applicable laws. 12.3 Subject to clauses 12.1 and 12.2: (a) Detected shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and (b) Detected's total aggregate liability in contract (including in respect of clause 11.1 and any Indemnity given by Detected under this Agreement), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees actually paid by the Customer for the Profiles during the 12 months immediately preceding the date on which the claim arose, or £1,000, whichever is greater. 12.4 Unless a Party notifies the other Party that it intends to make a claim in respect of an event within the notice period, the other Party shall have no liability for that event. The notice period for an event shall start on the day on which the Party wishing to make a claim became, or ought reasonably to have become, aware of the event having occurred (as opposed to it becoming aware of its having grounds to make a claim in respect of it) and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
TERM AND TERMINATION This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless: (a) either Party notifies the other party of its wish to terminate this Agreement in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon (and not before) the expiry of the applicable Initial Subscription Term or Renewal Period (as applicable); (b) in the case where the Parties have agreed a trial period, then Detected can terminate that trial period immediately at any time by giving notice of such termination to the Customer and, unless agreed otherwise between the Parties, the trial period shall not automatically renew; or (c) otherwise terminated in accordance with the provisions of this Agreement
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
Either party shall be entitled to terminate this Agreement where: the other party materially breaches its obligations under this Agreement and such breach (if capable of remedy) is not remedied within 14 days; or the other party stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. Detected may terminate our Agreement in whole or in part immediately by giving written notice to terminate if Customer fails to make payment under this Agreement or any other contract in place between the parties by the due date for payment. On termination of this Agreement for any reason: (a) all licences and rights granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and the Documentation; (b) each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party; (c) Detected may (subject to its obligations under Data Protection Laws) destroy or otherwise dispose of any of the Customer Data in its possession unless Detected receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of any recent back-up of the Customer Data which Detected may have. If Detected has any such Customer Data backed-up (for the avoidance of doubt, back up services are not guaranteed under this Agreement), then it shall use reasonable commercial endeavours to deliver such back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Detected in returning or disposing of Customer Data; (d) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced; and (e) any part of this Agreement which expressly or by implication is intended to survive termination or expiry will do so.
- FORCE MAJEURE Detected shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Detected or any other party), failure of a utility service or transport or telecommunications network, act of God, war, epidemic, pandemic, government-ordered shutdown, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery or computer systems,, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified within a reasonable timeframe of such an event and its expected duration, to the extent that Detected is able to notify the Customer and estimate the duration.
- CONFLICT If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail. If there is any inconsistency between Part 1 (Cover Sheet) of this Agreement and Part 2 (Terms and Conditions), then Part 1 (Cover Sheet) shall take precedence. The DPA shall take precedence over any element of this Agreement with respect to the processing of Personal Data.
- VARIATION No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- WAIVER 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.
- RIGHTS AND REMEDIES Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- SEVERANCE 19.1 If any provision, part-provision, or part of a 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. 19.2 If any provision or part-provision, or part of a part-provision of this Agreement is deemed deleted under clause 19.1 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.
- ENTIRE AGREEMENT 20.1 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. 20.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement, save in respect of where the parties may wish to pre-agree a trial period for this Agreement, in which case the length and other details of that trial period may be stated separately to this Agreement. 20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. 20.4 Nothing in this clause shall limit or exclude any liability for fraud.
- ASSIGNMENT 21.1 The Customer shall not, without the prior written consent of Detected, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its licences, rights or obligations under this Agreement. 21.2 Detected 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.
- NO PARTNERSHIP OR AGENCY Nothing in this Agreement is intended to or shall operate to create a partnership or similar arrangement between the parties, or authorise either party to act as agent, or hold itself out as any of the foregoing 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).
- THIRD PARTY RIGHTS 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) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- NOTICES AND DISPUTE RESOLUTION 24.1 Any notice required to be given as “written” or “in writing” 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 principal place of business, or such other address as may have been notified by that party for such purposes SAVE THAT the Customer shall be permitted to give notice in writing to Detected by email, but only where that email is sent to firstname.lastname@example.org, and it is objectively clear from the subject line of that email that the email is intended to give notice under this Agreement. Where “written” or “in writing” is not specified, then notice may also be sent by email. 24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. Notice sent by email shall be deemed received when sent, provided that no bounce-back or other receiving error is received by the sending party. 24.3 Each party shall do what it reasonably can to settle any dispute or claim that occurs under or in relation to this Agreement, and to avoid having to involve the courts or any other authority. 24.4 The parties shall use the following dispute resolution process: 24.4.1 whichever party is affected shall provide written notice of the complaint that clearly sets out the full facts and includes relevant supporting documents; 24.4.2 the parties shall both use reasonable endeavours to settle the dispute within 14 days of receiving the complaint and will provide regular updates to the other during the 14 days; and 24.4.3 if the dispute is not settled after 14 days (or any other period agreed between the parties in writing), the dispute can be escalated to a senior executive of either party (someone at director level or above). 24.5 Nothing in clauses 24.1 or 24.2 stops either of us: (a) seeking interlocutory or other immediate relief if a party is at risk of imminent harm; (b) going to a court of competent jurisdiction if either party considers it reasonable.
- GOVERNING LAW This Agreement, and any contractual or non-contractual dispute, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its existence, formation, validity or termination (including any non-contractual dispute or claim), shall be governed by and construed in accordance with English law.
- JURISDICTION The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) arising out of or in any way relating to this Agreement, including any question regarding its existence, validity, formation or termination.
SCHEDULE 1 - SERVICES AND SUBSCRIPTION FEES
The Subscription Fees shall consist of: (i) the Implementation Fee; (ii) the Platform Fee; and (iii) an additional variable element on top of the Platform Fee, which shall be triggered if the Customer accesses Profiles in excess of what is included within the Platform Fee or otherwise in the circumstances as set out below in paragraph 3 of this Schedule 1 (“Additional Fees”).
The Platform Fee includes the following: all of the functionality available in the Detected dashboard; API access as well as creation of up to 500 Profiles per month; and the Customer is able to adjust upwards and authorise the number of Profiles it makes available on its platform on a pay-as-you-go model. Customer may not flex down the agreed number of Profiles set out in Part 1. For example, in any given month, if 2,000 Profiles are initially enabled, and then half of those are disabled, and then another 500 are activated in their place, the total number of Profiles which were active that month will be 2,500, and the cost for this use shall be as is set out in Part 1. The number of authorised Profiles can be adjusted by the Customer in the portal for the Services which are provided to the Customer.
Detected shall charge the Additional Fees to the Customer in the following circumstances:
the subsequent monthly refresh of all Profiles is 75p per Profile; ID Verification is £2.25 per director check and links to the original business Profile; if the Customer would like to create more than 500 Profiles, each additional Profile shall be outside of the scope of the Platform Fee, and incur a creation fee of 75p per Profile. When that Profile is maintained into the next month, then for each subsequent month that it is maintained, the cost shall be 75p per Profile; if the Customer removes or allows a Profile to lapse, but then later adds that Profile back in, then the re-addition of the Profile will be deemed the creation of a new Profile, as Detected will re-run the searches, and incur the costs of doing so; Profiles for companies incorporated in China cost £10 per Profile to create, and are then 75p per month to maintain; for the avoidance of doubt, Profiles which are created in a given month, and maintained in the subsequent month, shall have their credentials refreshed automatically and the refresh charges above shall be payable; where the Customer requires Support Services in excess of those offered as standard (which shall, for the avoidance of any doubt, be in the sole opinion of Detected) in which case Support Services shall be charged to Customer on a time and materials basis at a rate to be agreed between the parties; and/or where Detected agrees to provide Bespoke Services in accordance with paragraph 4 below.
If the Customer requires any bespoke or white labelled service (“Bespoke Services”) such Bespoke Services and the appropriate Additional Fees shall be agreed between the parties and incorporate the terms of this Agreement along with any other legal, regulatory, commercial terms and/or Special Terms which may be required, which shall be added to Part 1 to this Agreement.
Where the Customer requires Implementation Services, the Customer acknowledges and agrees that it must provide, in a timely manner, all information reasonably required by Detected in order to perform the relevant Implementation Services. If the Customer does not provide such information, Detected shall have no liability to the Customer for failure to perform the Services, or otherwise comply with its obligations under this Agreement.
SCHEDULE 2 - SUPPORT SERVICES
Detected is committed to ensuring that the Customer understands and achieves the functionality from the Services which it is looking for. Detected has made a “Contact Us” page available on its website, through which the Customer can contact Detected and reach out with any questions, comments, or support questions which it may have. Detected shall use reasonable endeavours to respond to these and assist with issues as soon as it reasonably can.
Detected may also provide other methods of contact to the Customer, in which case the Customer should use whichever method it feels is most appropriate.
If the support required is, in Detected’s absolute discretion, disproportionately high as compared to the Subscription Fees paid, Detected may give notice to the Customer that it will charge the Additional Fees. Save as set out in this Schedule 2, no guarantee of Support Services or timeframes for response are provided by Detected.Each of Detected and the Customer shall be a party and together the parties for the purposes of this Agreement.