Terms and Conditions

1. The definitions and rules of interpretation in this clause apply in this Agreement.
   • Agreement: the agreement between the Company and the Customer for the provision of the Services, incorporating these terms and conditions, the Schedules, the Order Form and any amendments to the Agreement from time to time.
   • Applicable Law: any laws or regulations, regulatory policies, guidelines or industry codes in force from time to time, which apply to this Agreement or its subject matter.
   • Authorised Group Company: a group company of the Customer for whom the Customer has purchased a user licence (where applicable), as set out in the Order Form.
   • Authorised Users: those employees, agents, and independent contractors of the Customer or any Authorised Group Company (where applicable), and any Client Users of the Customer (where applicable), for whom the Customer has purchased the relevant User Subscriptions as per clause 3.
   • Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks are open for business.
   • Client Users: in respect of Customers who use the SaaS Services to manage products of a third party client, the users of that client for whom the Customer has purchased a client user licence, as set out in the Order Form.
   • Commencement Date: the date the Customer registers for the Platform.
   • Confidential Information: shall mean all information that is proprietary or confidential of a party, including any and all commercial, financial or business information, or any technical information, products, software, documentation, plans, materials, presentations, designs, specifications, diagrams, drawings, processes, methods, know-how, ideas, techniques, algorithms or inventions.
   • Control: 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.
   • Customer: means the customer whose details are set out in the Subscription.
   • Customer’s Subscription: the Subscription as outlined in the Platform.
   • Customer Data: all text, information, data (including any personal data), and any other material of the Customer, any Authorised Group Company or Client User, which is held on the Platform through the use of the SaaS Services by the Customer, Authorised Group Company or Client User.
   • Documentation: any user documentation and information in respect of the use of SaaS Services, made available by the Company from time to time (including any operating or technical information or documentation).
   • Fees: the fees payable by the Customer to the Company under this Agreement as set out in the Customer’s Subscription.
   • Force Majeure Event: means, in respect of a party, any event beyond that party’s reasonable control including: acts of God, flood, storm, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, war or armed conflict, civil commotion, threat of or preparation for war; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority; collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than by the party seeking to rely on this clause); interruption or failure of utility service; non-performance of subcontractors.
   • Initial Subscription Term: the period set out in the Customer’s Subscription.
   • Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring rights, trademarks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
   • Platform: the platform on which the SaaS Services are hosted.
   • Professional Fees: the Company’s then current standard rates applicable to the provision of any Professional Services by the Company.
   • Professional Services: any services to be provided by the Company to the Customer separately from this Agreement, as set out in a separate agreement, and which may include customisation, integration, implementation, development or consultancy work, and training in respect of the SaaS Services.
   • Professional Services Agreement: contract detailing agreed Professional Services to be provided by the Company to the Customer, along with agreed timescales and associated costs.
   • Renewal Period: the period described in clause 13.1.
   • RPI: the percentage increase in Retail Price Index (RPI) for the preceding 12 months, published by the Office for National Statistics.
   • SaaS Services: the learning platform software services, known as ‘Thirst’, provided by the Company on a “software as a service” basis.
   • Services: the SaaS Services, Support, and any Professional Services to be provided by the Company under this Agreement, as set out in the Customer’s Subscription.
   • Software Updates: any update or patch to the SaaS Services (or any part of them) which has been produced primarily to overcome any defect or error in the relevant software, excluding any new versions of or upgrades to the SaaS Services.
   • Subscription: the Customer’s Subscription as outlined in the Platform.
   • Subscription Fees: the subscription fees payable for the SaaS Services, including any licence fees, User Subscription fees and support fees, as outlined in the Customer’s Subscription.
   • Support: support services to be provided by the Company to the Customer in the relevant tier set out in the Order Form, as set out in the Support Schedule.
   • Support Schedule: the support schedule setting out the Support to be provided by the Company to the Customer, as provided by the Company and as may be updated or amended from time to time.
   • Term: means the term of this Agreement, as set out in clause 13.1.
   • User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the SaaS Services, as set out in the Customer’s Subscription, and additional subscriptions which may be purchased by the Customer and set out in the Customer’s Subscription from time to time.
   • Virus: 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 affects the user experience, including worms, trojan horses, viruses and other similar things or devices.
   • Year: a period of twelve months commencing on the Commencement Date and each anniversary thereof.

1. In consideration of the Customer paying the Fees and subject to the Customer complying with the terms and conditions of this Agreement, the Customer shall have a non-exclusive, non-transferable right to permit its Authorised Users to access and use the SaaS Services and the Documentation, for its own internal business operations only.
2. The rights granted under clause 2.1 are personal to the Customer and the Customer may not sub-license, transfer or assign its rights under clause 2.1.
3. The Company shall be entitled to make any changes, modifications or additions to the SaaS Services, and may implement any Software Updates, from time to time in its sole discretion.

1. The Customer undertakes that:
   1. (a) the User Subscriptions shall only be used by Authorised Users and shall not be used by any other person;
   2. (b) each Authorised User shall use a secure email address and/or keep a secure password for accessing the SaaS Services, which the Authorised User shall keep secure and confidential at all times; and
   3. (c) it shall maintain a written, up-to-date list of current Authorised Users and provide such list to the Company within five Business Days of its written request at any time, and shall notify the Company if it becomes aware of any unauthorised access to the SaaS Services.
2. The Customer shall, and shall procure that all Authorised Users shall:
   1. (a) comply with all Applicable Law, and any instructions issued by a regulatory body, in its use of the SaaS Services;
   2. (b) use the SaaS Services and Documentation in accordance with this Agreement, and shall be responsible for any Authorised User’s use of the SaaS Services or breach of this Agreement;
   3. (c) obtain and shall maintain all necessary licences, consents and permissions which are necessary to enable it to comply with its obligations under this Agreement and in respect of its use of the SaaS Services;
   4. (d) provide the Company with all necessary cooperation and access to such information, premises, systems and network, as are required by the Company in order to perform the Services (including Customer Data, security access information and systems and technical information), and shall ensure that such information is accurate and complete;
   5. (e) ensure that it has all necessary hardware, desktop software internet, network communications and other technology and that the Customer’s computer equipment, systems, network and browser meet all technical requirements applicable to access and use of the SaaS Services which are notified to it by the Company from time to time; and
   6. (f) use reasonable endeavours to prevent any unauthorised access to, or use of, the SaaS Services (including implementing and maintaining adequate security measures and policies in accordance with good industry practice) and, in the event of becoming aware of any such unauthorised access or use, shall immediately notify the Company and shall give the Company all assistance that it reasonably requires to prevent such unauthorised access.
3. The Customer shall not, and shall procure that its Authorised User shall not:
   1. (a) use the SaaS Services in any way that breaches any Applicable Law;
   2. (b) use any of the SaaS Services to transmit, upload, disseminate or otherwise distribute any material that:
      1. (i) is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing, racially, religiously or ethnically offensive, or otherwise objectionable;
      2. (ii) infringes any Intellectual Property Rights, rights of privacy, personality or publicity or other third-party rights;
      3. (iii) contains unsolicited or unauthorised advertising or promotional content;
      4. (iv) facilitates or promotes illegal activity;
      5. (v) threatens the security and/or confidentiality of the SaaS Services; and/or
      6. (vi) causes damage to injury to any person or property;
   3. (c) store, distribute or transmit any Viruses (or attempt to do the same) during the course of its use of the SaaS Services, or attack the SaaS Services via a denial-of-service attack or a distributed denial-of-service attack;
   4. (d) attempt to access without authority, interfere with, damage or disrupt any part of the SaaS Services;
   5. (e) use any of the SaaS Services to commit any fraud or fraudulent activity;
   6. (f) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form, all or any part of the SaaS Services, or copy, modify, translate, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the SaaS Services and/or Documentation in any form or media or by any means (including by using any robot, spider or other automated device or manual process);
   7. (g) use or integrate any of the SaaS Services with any third-party software or hardware, except for third-party software approved by the Company and the integration for which has been provided by the Company;
   8. (h) access all or any part of the SaaS Services and/or Documentation in order to build a product or service which competes with any of the SaaS Services; or
   9. (i) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make any of the SaaS Services or Documentation available to any third party except the Authorised Users, or use any of the SaaS Services to provide services to third parties.
4. The Customer shall permit the Company or its designated representative, on giving reasonable notice, to audit the use of the SaaS Services by the Customer and Authorised Users, to establish whether such use is in compliance with this Agreement.
5. The Customer acknowledges and agrees that the Company shall not be liable to the Customer for any service disruptions, interruptions, delays or failures to the SaaS Services, as a result of the Customer’s breach of its obligations under this clause 3.

1. The Customer shall:
   1. (a) co-operate with, and promptly provide to, the Company such information as the Company requires in order to provide the Services under this Agreement;
   2. (b) provide the Company with such access to any premises, systems and networks as the Company may reasonably require for the purposes of providing the Services.

1. The Company shall:
   1. (a) provide the Services with all reasonable skill and care, using personnel who are suitably qualified and trained; and
   2. (b) comply with reasonable policies of the Customer (including for security and health and safety) as have been provided to the Company in respect of the Company’s attendance at the Customer’s premises in the provision of the Services.

1. The Company shall be entitled, without liability and without prejudice to any other of its rights or remedies under this Agreement, to suspend access to and use of any of the SaaS Services:
   1. (a) to the extent required in order to improve, update or alter, or replace, maintain or repair, any of the SaaS Services (including to rectify any malfunction, fault or damage);
   2. (b) where required by any regulatory, governmental or other competent authority;
   3. (c) in the event that the Customer’s or any Authorised User’s use of the SaaS Services is in breach of any of the provisions of clause 3;
   4. (d) in the event that the Customer fails to make payment of any Fees on the due date for payment in accordance with clause 7; or
   5. (e) as a result of, to deal with, or to protect the SaaS Services against, any actual, suspected or threatened security breach, Virus, or attack on any of the SaaS Services.

1. The Customer shall pay the Fees to the Company in accordance with this clause 7.
2. The Company shall invoice the Customer for the Subscription Fees as detailed in the Customer’s Subscription in the Platform. Professional Fees for any Professional Services agreed separately from this agreement shall be payable on a time and materials basis and shall be invoiced, together with any expenses incurred by the Company in the provision of the Services, monthly in arrears or on the terms set out in the Professional Services Agreement. Unless set out otherwise in the Professional Services Agreement, the Customer shall pay each invoice in full and cleared funds within 30 days of the date of invoice to the bank account specified on the invoice.
3. If the Customer fails to make any payment due to the Company by the due date for payment, the Company may, without prejudice to any other rights and remedies it may have:
   1. (a) suspend the Customer’s use of and/or access to the SaaS Services, and the Company shall be under no obligation to provide any of the Services while the invoice(s) concerned remain unpaid;
   2. (b) charge the Customer interest on a daily basis in respect of the overdue amount at the rate of 4% per annum above Santander UK plc’s base rate from time to time, from the due date and continuing until payment of the overdue amount is received in full by the Company, whether before or after judgment; and
   3. (c) recover from the Customer any fees incurred by the Company (including debt recovery agency fees, legal fees and court costs) in recovering the overdue amount.
4. All amounts and fees stated or referred to in this Agreement:
   1. (a) shall be payable in pounds sterling, are non-refundable, and are exclusive of value-added tax or any other applicable tax or duty payable upon such sums, which shall be payable by the Customer in addition, at the applicable rate;
   2. (b) shall be paid in full without any deduction, discount, set off or abatement except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
5. The Company may increase the Subscription Fees once in a twelve-month period, on giving the Customer at least 30 days’ notice of such increase, such price increase to be no more than the rate of RPI plus 5 %.

1. The Customer Data is the property of the Customer and/or its licensors. The Customer hereby grants a royalty-free, worldwide licence to the Company to use the Customer Data and any Intellectual Property subsisting therein (Customer IP) as necessary to provide the SaaS Services to the Customer. The Customer warrants that it has all necessary rights in and to the Customer Data and Customer IP in order to grant the rights under clause 8.1.
2. The Customer acknowledges and agrees that the Company owns all Intellectual Property Rights in and relating to the SaaS Services and Documentation, and any modifications and enhancements made thereto. Except as expressly granted under this Agreement, the Customer shall not have the right to use, or acquire any other right, licence, title or interest in or to, any Intellectual Property Rights of the Company or its licensors.
3. The Customer may not remove or obscure any trademarks, or any copyright, trade mark or proprietary notices featured, displayed or provided with the SaaS Services.

1. Each party shall keep all Confidential Information of the other party confidential and shall not disclose any Confidential Information to a third party without the prior written consent of the other party, and shall not use the Confidential Information of the other party for any purpose other than the performance of its obligations under this Agreement.
2. Each party may only make the Confidential Information of the other party available to its employees who need to know the Confidential Information in order to perform its obligations or exercise its rights under this Agreement, provided that such persons are subject to confidentiality obligations and the receiving party remains responsible for any breach of these confidentiality obligations by such personnel as if it were it’s own.
3. The Confidential Information shall not include any information that:
   1. (a) was in the other party’s lawful possession without any confidentiality obligations prior to its receipt hereunder; or
   2. (b) is or becomes publicly available through no act or omission of the receiving party.
4. A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent, it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and takes into account the reasonable requests of the other party in relation to the content of such disclosure.

1. Subject to clause 10.2 and clause 11, the Company shall indemnify the Customer for any amounts reasonably incurred or suffered by the Customer as a direct result of, or awarded against the Customer in judgment or settlement of, any claim that the use of the SaaS Services by the Customer in accordance with this Agreement infringes a registered patent (an Infringement Claim), provided that:
   1. (a) the Company is given prompt notice of any such claim, specifying the nature and particulars of the claim in reasonable detail;
   2. (b) the Customer does not make any admission of liability, agreement, compromise or settlement in respect of such claim, and provides reasonable cooperation to the Company in the defence and settlement of such claim at the Company’s reasonable expense;
   3. (c) the Company is given sole authority to defend or settle the claim, and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action; and
   4. (d) the Customer uses all reasonable endeavours to mitigate any loss or damage resulting from such Infringement Claim.
2. In no event shall the Company be liable to the Customer to the extent that an Infringement Claim arises from or in relation to:
   1. (a) any development or customisation of the SaaS Services in accordance with the Customer’s instructions;
   2. (b) the use of the SaaS Services in combination with any Customer Data or third-party software; or
   3. (c) the use of the SaaS Services by the Customer or any Authorised User other than in accordance with this Agreement.
3. If the SaaS Services becomes or, in the Company’s reasonable opinion, is likely to become the subject of any Infringement Claim, the Company shall be entitled, at its absolute discretion and without liability, to:
   1. (a) replace all or part of the SaaS Services with materially equivalent software;
   2. (b) modify the SaaS Services to avoid such Infringement Claim;
   3. (c) procure for the Customer a licence to continue using the SaaS Services; and/or
   4. (d) if after having used reasonable endeavours the Company is unable to achieve any of the options at sub-clauses 10.3(a) to 10.3(c), the Company may terminate this Agreement with immediate effect on written notice to the Customer, in which case, the Company shall refund any unused Subscription Fees paid in advance by the Customer on a pro-rata basis.

1. Nothing in this Agreement excludes the liability of either party for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded under Applicable Law.
2. Without prejudice to clause 11.1, the Company shall have no liability:
   1. (a) for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the SaaS Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
   2. (b) for any impaired performance or non-performance of any of the SaaS Services arising from a failure to comply with any specifications or technical requirements relating to use of the SaaS Services notified by the Company from time to time; or
   3. (c) for any fault, failure or unavailability of any of the SaaS Services caused by the Customer or any third-party software, or as a result of any failure, unavailability, speed or limitations of the Customer’s internet and network communications, computer equipment and/or web browser.
3. The Company gives no warranty or representation that the SaaS Services will meet the Customer’s requirements. The Customer shall be solely responsible for ensuring that the SaaS Services meet its requirements.
4. The Company gives no warranty or representation that use of the SaaS Services will be uninterrupted, available or error-free. The SaaS Services are provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, including the implied conditions, warranties and other terms as to satisfactory quality and fitness for purpose.
5. The Company shall not be liable whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any:
   1. (a) loss of profits;
   2. (b) loss of sales or business;
   3. (c) loss of agreements or contracts;
   4. (d) loss of anticipated savings;
   5. (e) loss of opportunity;
   6. (f) loss of goodwill;
   7. (g) loss of use or corruption of software, data or information; or
   8. (h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses howsoever arising under this Agreement.
6. The Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement, in any Year, shall not exceed the total Fees paid by the Customer to the Company during the previous Year.

In respect of any personal data which is processed by the Company on behalf of the Customer in connection with the SaaS Services, the parties shall comply with the Data Processing Schedule in Appendix 1.

1. This Agreement shall commence on the Commencement Date and shall continue for the Initial Subscription Term unless terminated earlier in accordance with its terms. Thereafter, this Agreement shall automatically renew for successive periods of 1 month (each a Renewal Period), unless either party provides notice of termination to the other party prior to the expiry of the Initial Subscription Term or then-current Renewal Period (as applicable), in which case this Agreement shall terminate upon the expiry of the Initial Subscription Term or the relevant Renewal Period, as applicable.
2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
   1. (a) the other party commits a material breach of any of the terms of this Agreement, which is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so; or
   2. (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
   3. (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
   4. (d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
   5. (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
   6. (f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
   7. (g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
   8. (h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
   9. (i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(b) to 13.2(h) inclusive; or
   10. (j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
3. The Company may terminate this Agreement with immediate effect by giving written notice to the Customer, without liability, if:
   1. (a) the Customer fails to pay any amount due under the Agreement within 14 days of the due date for payment;
   2. (b) the Customer’s or any Authorised User’s use of the SaaS Services is in breach of clause 3.2 or 3.3;
   3. (c) the Customer undergoes a change of Control; or
   4. (d) the Company is unable to continue to provide the SaaS Services as a result of a change in Applicable Law.

1. On termination of this Agreement for any reason:
   1. (a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease using, and the Company may with immediate effect terminate the Customer’s and all Authorised Users’ access to and use of, the Services;
   2. (b) each party shall return and make no further use of any equipment, property, Confidential Information and other items (as applicable), and all copies of them, belonging to the other party;
   3. (c) the Customer shall immediately pay to the Company all sums due to the Company under this Agreement, and in respect of any sums which have not yet been invoiced, the Company may raise invoices for such sums which shall become immediately payable;
   4. (d) the Company shall, if requested by the Customer within a period of 30 days from the date of termination or expiry of this Agreement, provide to the Customer a copy of the Customer Data held on the Platform, in such format determined by the Company, within 24 days of the date of such request, provided that the Customer has paid all fees and charges outstanding, or which become payable on, termination. The Company may charge the Customer for its costs in providing the Customer Data to the Customer, on a time and materials basis, at the Company’s then-current standard rates. If the Customer has not requested the Customer Data within such 30-day period, the Company may delete such Customer Data, without liability;
   5. (e) 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
   6. (f) the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

1. If a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement (other than payment) by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations, and the time for performance of such obligations shall be extended accordingly. The party affected by such Force Majeure Event shall notify the other party as soon as reasonably practicable of the Force Majeure Event.
2. If the Force Majeure Event prevents, hinders or delays a party’s performance of its obligations under this Agreement for a continuous period of more than 60 days, the party not affected by the Force Majeure Event may terminate this agreement by giving 30 days’ written notice to the other party.

1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to its address set out in this Agreement or such other address as notified by that party in accordance with this clause from time to time.
2. Any notice shall be deemed to have been delivered:
   1. (a) if delivered by hand, at the time the notice is left at the proper address; or
   2. (b) if sent by pre-paid first-class post or other next working day delivery service, on the second Business Day after the date of posting.
3. This clause does not apply to the service any proceedings or other documents in any legal action.
4. A notice given under this Agreement is not valid is sent by email.

1. The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-license, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Company 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 the Agreement.

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. Each party agrees that it 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

1. 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.

1. If any provision or part-provision of this Agreement is found by any court to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

1. 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.

1. Nothing in this Agreement is intended to, or shall be deemed to, establish or imply any partnership or joint venture between the parties, constitute one party the agent or employee of the other party, or authorise one party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

1. This Agreement does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

1. Except as expressly permitted by this Agreement, neither party will without the written consent of the other party at any time during the term of this Agreement or for fix (6) months after termination or expiration of this Agreement, directly or indirectly solicit, engage, employ, or endeavour to entice away from the other party any person who is or was during the preceding six (6) months an employee of the other party and engaged in the provision or receipt of the Services. This clause 24.1 will not apply to any employee who responds to a general recruitment effort, including through a third-party agency or advertisement.

1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

Data Protection

This Appendix applies in respect of personal data which is processed by the Company on behalf of the Customer in the provision of the SaaS Services.

1. Definitions

In this Appendix, defined terms shall have the meaning given in the Agreement, unless otherwise defined herein. The following definitions will apply in this Appendix:

• Customer Personal Data: any personal data which is processed by the Company on behalf of the Customer in providing the SaaS Services.
• Data Protection Legislation: all applicable legislation and regulations relating to personal data in force from time to time which apply to a party, relating to the processing of personal data, including the Data Protection Act 2018 (the UK DPA), the UK GDPR, as defined in and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419 (the UK GDPR), and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020, and any other applicable law or regulation which supersedes, replaces or implements any of the foregoing in the United Kingdom.
• Data Subject Request: a request from a data subject to exercise the data subject’s rights under and in accordance with the Data Protection Legislation, including requests for access to personal data, rectification or erasure of personal data, restrictions of processing personal data, and portability of personal data.
• The terms controller, processor, personal data, data subject, data protection impact assessment and personal data breach shall each have the meanings set out in the Data Protection Legislation.

2. General
   1. The parties acknowledge that the Company may process the Customer Personal Data on behalf of the Customer in performing the Services under this Agreement.
   2. The types of Customer Personal Data that may be processed by the Company in performing this Agreement are set out in the Annex to this Appendix.
3. Customer’s Obligations
   1. It shall be the Customer’s responsibility to:
      1. (a) ensure that the Customer has a lawful basis and has all necessary appropriate consents and notices in place, to enable the Company to process and to authorise the Company to process the Customer Personal Data in the manner envisaged by this Appendix; and
      2. (b) ensure that instructions for the processing of Customer Personal Data comply with the Data Protection Legislation, and it shall be responsible for the provision of fair processing information, as required under the Data Protection Legislation, to relevant data subjects.
   2. The Company shall have no liability to the Customer arising from the Customer’s failure to comply with such requirements.
4. Processing Obligations
   1. The Company shall, in relation to any Customer Personal Data processed by the Company on the Customer’s behalf, in connection with the performance by the Company of its obligations under this Agreement:
      1. (a) process that Customer Personal Data to the extent necessary to perform the Company’s obligations under this Agreement, as set out in the Annex, unless otherwise required by law, regulation, court of competent jurisdiction or any other governmental or regulatory body;
      2. (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
      3. (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;
      4. (d) provide reasonable assistance, at the Customer’s request and cost, in responding to any request from a Data Subject, where the Customer does not have access to such information to be able to respond to the request, and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. (e) notify the Customer without undue delay on becoming aware of a personal data breach affecting the Customer Personal Data;
      6. (f) maintain records and information regarding its processing activities in relation to the Customer Personal Data to demonstrate its compliance with this Appendix.
   2. The Company shall allow for audits by the Customer or the Customer’s designated auditor of the Company’s procedures relevant to the processing of Customer Personal Data, provided that in the case of any audit, the Customer shall:
      1. (a) comply with any reasonable requirements or security restrictions that the Company may impose to safeguard the Company’s systems, data held on the Company’s systems, and the Company’s own confidential or commercially sensitive information and to avoid unreasonable disruption to the Company’s business and operations;
      2. (b) reimburse the Company for time it expends in respect of such audit, at the Company’s then current professional services rates, which costs shall be reasonable, taking into account the resources expended by the Company, and before the commencement of any audit, the parties shall mutually agree on the scope, timing and duration of the audit.
   3. The Customer confirms that it has obtained the Customer’s consent to the Company appointing third-party processors in respect of the Customer Personal Data under the Agreement, provided that the Company shall notify the Customer of any intended changes concerning the addition or replacement of such processors and provide the Customer with the opportunity to object to such changes on information security grounds. If the Customer has not objected to any such changes within a period of 14 days of the date of notification of the changes, the Customer shall be deemed to have accepted such changes. The Company shall have a written contract in place with such third-party processors which imposes obligations on the processors that are equivalent to those set out in this Appendix.
   4. If at any time the Customer has reason to believe that the processing of any Customer Personal Data under the Agreement is in breach of the Data Protection Legislation, the Customer shall immediately notify the Company.
5. Liability

The Company’s liability under or in connection with this Appendix shall be subject to the limitations and exclusions of liability set out in clause 11 of the Agreement.

Annex to Appendix 1

The following categories of Customer Personal Data may be processed by the Company under this Agreement: