Shiken Terms of Service
Shiken Terms and Conditions of Service
Last Modified: September 1, 2023
THESE MASTER TERMS AND CONDITIONS ARE BETWEEN THE ENTITY IDENTIFIEDON AN APPLICABLE ORDER FORM (“Customer”) AND MEDDICLE LIMITED,A COMPANY REGISTERED IN THE UNITEDKINGDOM WITH ITS REGISTERED OFFICE AT BOYCE'S BUILDING 40-42 REGENT STREET,CLIFTON, BRISTOL, ENGLAND, BS8 4HU (“Provider”),AND GOVERN CUSTOMER’S RIGHT TO ACCESS TO THE ONLINE PLATFORM AND INTERACTIVETRAINING RESOURCES PROVIDED BY PROVIDER.
1. TERMS OF AGREEMENT. These MasterTerms and Conditions along with the Order Form, including any terms and pricing incorporated by reference (collectively, the “Agreement”), constitute the entire, full and complete agreement between Customer and Provider (each a “Party” and together the “Parties”) for Customer’s access to and use of the System (as defined herein) and services of Provider. This Agreement contains the entire understanding of the Parties relating to the subject matter, and supersedes all prior or contemporaneous oral or written agreements, understandings, communications,proposals, representations and warranties regarding the subject matter. In the event of a conflict between theseMaster Terms and Conditions and the terms of an Order Form, the terms of theOrder Form shall prevail. Any terms or conditions in Customer’s purchase order or any other related documents submitted by or on behalf of Customer to Provider do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signedby the Parties.
2. DEFINITIONS. In addition to terms that are defined elsewhere in this Agreement, the following terms will have the meanings indicated below:
2.1 “Affiliate” means, with respect to any Party,an entity that directly or indirectly is controlled by, controls, or is under common control with such Party. As used in the preceding sentence, “control” means (a) the ownership of 50% or more of the voting securities or other voting interests of any entity, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
2.2 “Authorized User”means an employee, contractor, or (in the case of an educational institution)enrolled student of Customer or Customer’s Affiliates who is authorized by Customer to access or use the System in connection with the conduct of Customer’s business as permitted hereunder and for whom Customer has paid any applicable Fee.
2.3 “Customer Administrator” means an Authorized User holding a position with Customer or Customer’s Affiliate that is designated as management or supervisory.
2.4 “Customer Content” means any content or information in the form provided or created by Customer that is accessed or stored in the System, but does not include any Derivative Content or System Content.
2.5 “Derivative Content” means content based on the System Content, including modifications,improvements, enhancements or additions to the System Content provided by Customer, and including all adaptations as defined under the Copyright Designs and Patents Act, whether or not subject to copyright protection, but does not include any portion of the System Content incorporated or embedded insuch Derivative Content.
2.6 “Documentation” means the official user documentation for the System provided by Provider from time to time.
2.7 “Fee”means the amount that Customer shall pay to Provider as consideration for access to or use of the System as specified in the Order Form and any adjustments for additional Authorized Users.
2.8 “Order Form”means a Provider ordering document (whichcould be online or in electronic form) pursuant to which Customer applies for access to the System, and which is entered into between Provider and Customer, including any addenda and documentsincorporated by referenced therein.
2.9 “Professional Advice” means advice of a medical doctor, legal professional, certified public accountant, actuary, or other licensed professional adviser.
2.10 “System”means the online platform providing interactive training resources, including,but not limited to, Shiken Content Creation, Remote Training and Analytics Engine products and any other products made available from time to time to Authorized Users on the System.
2.11 “System Content” means the content, data, information, analysis, code and output of the System including without limitation Q&A overlays, hotspots, information boxes, navigation controls and virtual role plays created by the System.The term System Content does not include Customer Content.
2.12 “Trade Secret” means business or technical information that derives independent actual or potential commercial value from not being generally known or readily ascertainable through independent development or reverse engineering.
3.ACCESS TO THE SYSTEM.
3.1 License to System. Subject to the terms and conditions of this Agreement, Provider grants to Customer during the Term (as defined in Section8.1) a limited,non-exclusive and non-transferable license to access and use, for theAuthorized Users within Customer’s organization only, the System solely forCustomer’s business purposes in accordance with this Agreement (the “License”). Customer agrees not to use, or permit any Affiliate orAuthorized User to use, the System for any purposes beyond the scope of the License. Withoutlimiting the foregoing, Customer shall not, nor permitCustomer’s Authorized Users,Affiliates or others to: (a) resell, sublicense, lease, time-share or otherwise make the System available to anythird party, including for third-party training, commercial time-sharing, or application serviceprovider or servicebureau use; (b) transferor copy the System or any component thereof; (c) modify, adapt or makederivative works of the System, or reverse engineer, decompile, disassemble or otherwise attempt todiscover the source code, object code or underlying structure, ideas, know-how or algorithms ofProvider’s software used in the provision of services (provided that theforegoing shall not be construed to prohibit Customer from configuring theSystem to the extent permitted by the System’s standard user interface); (d) remove,obscure, or alter Provider’s proprietary notices, trademarks, or otherproprietary rights notices affixed to or contained in the System or the SystemContent; (e) use the Systemor System Contentin contravention of any federal,state, local, foreignor other applicable law, orrules or regulations of regulatory or administrative organizations; (f)introduce into the System any virus or othercode or routineintended to disruptor damage the System or its content,or collect information about the System or its users;
(g) use the System to send or store infringing or unlawful material;(h) access the System for the purpose of building a competitive productor service or copying its features, contentor user interface, including by screen scraping;or (i) access or use the System by means of any interfacingprogram, script, automated program, electronic agent or “bot,” except asauthorized in writing by Provider. No rights are granted to the System orSystem Content exceptas explicitly set forth in this Agreement, and all such other rights are expressly reserved by Provider.
3.2 System Content. Customer ispermitted to use the System Content and Derivative Content for Customer’s owninternal business purposes in accordance with this Agreement and the License.Customer may disclose information from SystemContent and Derivative Content to thirdparties in connection with such businessactivities; provided that Customer shall not, and shall not permit Customer’s Authorized Users, Affiliates or others to: (i) discloseall or significant portions of the System Content in the form provided bythe System; or (ii) use System Content for the purpose of building acompetitive product or service.
3.3 Restrictions on Use. Customer shall not access,store, distribute or transmit any material that: (a)is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or raciallyor ethnically offensive; (b) is discriminatory based on race, gender,colour, religious belief,sexual orientation or disability;or (c) is otherwise illegalor causes damageor injury to anyperson or property. Provider reserves the right without liability or prejudiceto its other rights against the Customer to disable access and remove anymaterial that breaches these requirements.
3.4 Authorized Users.Accessto the System is limited to thenumber of Authorized Users specifiedin the Order Form. Providerwill issue a unique user ID and password to each Authorized User to enablethem to use the System.Each user ID andpassword is confidential and is intendedfor use only by the Authorized User to whom it is assigned. An Authorized User’s account may not be used by morethan one individual, but Customer may reassign a user permission in itsentirety to another employee or contractor of Customer or Customer’s Affiliates(a “Reassigned User”). If more usersthan the number of Authorized Users listedon the Order Form (including Reassigned Users) use the System,Customer shall pay for additional users at the rate specified in the Order Form (or if notspecified then at Provider’s standard rates). Customer will instruct Customer’sAuthorized Users to safeguard user ID and password information relating to theSystem and not to share such information with others, and will notify Providerimmediately if any such user ID or password information has been compromised. Customer is responsible for all activitiesand transactions conducted under the accounts of Customer’s Authorized Users,and for the compliance of Customer’s Authorized Users with this Agreement. Any user ID may be suspended and/ordeactivated and access to and use of the System suspendedby Provider in the event of any breach of security, provided that Providershall use commercially reasonable measures to attempt to provide promptnotification of such action.
3.5 Data Collection. Provider will collect the followingpersonal data of Customer’s staff and Authorized Users: full name, email, phone number, affiliation with Customer, professional registration (if applicable), area of specialization, device type, location code, UUID, browserdetails, and detailsof any interaction between an Authorized User and Provider, Customer or theSystem (“Customer Data”). Customer Data is supplied by Customer orAuthorized User or collected by Provider during Customer’s or the AuthorizedUser’s sign up process or during use of the System. Customer Data shall also include details of each AuthorizedUser’s test scores and System usage when the Authorized User accesses trainingmaterials on the System.
3.6 Equipment andInternet Access. Customer will furnish, at Customer’s expense,any computer, networking, telecommunications and otherequipment, services and communication links necessary for Customer’s AuthorizedUsers to access the Internet and connect to the System. Provider will not beresponsible for equipment or network outages or problems relating to Customer’spremises or infrastructure. In no event will Provider be responsible for thecompatibility of the System with any software, service, hardware or equipment that is not provided by Provider or that does not meet specification prescribed by Provider.
3.7 Payment Terms.The Fee that Customer shall pay to Provider is detailed on the OrderForm. All Fees shall be duewithin 30 days of the date of invoice. Providermay suspend Customer’s access to the System if payment is delayed more than15 days and shall chargeinterest on such delayed paymentat a rate of 1% per monthor the maximum rate permitted by applicable law.
4. TRAINING AND SUPPORT.
4.1 Training. Providerwill provide trainingto Customer Administrators during the first thirty (30) days following the effective date of thisAgreement. The training shall beprovided through online and live and pre-recorded content.
4.2 Support. Provider willprovide reasonable support in the creation of training related CustomerContent, as detailed on the Order Form.Provider will provide a telephone number and/or email address to enable reporting of technical andoperational issues with the System during the hours of 9:00 AM and 5:00 PM (GMT), Monday throughFriday, excluding days designated as public holidays. Customer may alsoinitiate a helpdesk ticket any time by emailing support@Shiken.com. Provider will use commercially reasonable efforts to respond to allhelpdesk tickets within one (1) business day.
4.4 Online Access. Provider will usecommercially reasonable efforts to cause the System to be accessible toAuthorized Users 99.5% of the time, measured monthly and excluding scheduledmaintenance, required repairs and inaccessibility due to any circumstancedescribed in Section 11.5. If Customerrequests maintenance, any uptime or downtime calculation will exclude periodsaffected by such maintenance. In the event of any failure of Customer to haveaccess to the System 99.5% of the time during any month, Customershall be entitledto a credit for each period of inaccessibility equaling 30 minutes inany month (“Downtime Period”) equalto 1% of the fees payable for such month (“ServiceCredit”). A Downtime Period shall begin to accrue as soon as Customer (withnotice to Provider) recognizes that Downtime is taking place and shall continue until the accessibility of the Systemis restored. In order to receive the Service Credit,Customer must notify Provider in writing within ten (10) business days from the time of any DowntimePeriod and specifythe length of such downtime.Failure to provide suchnotice will forfeit the right to receive Service Credit. Service Credits will be applied toward the Fees for the nextrenewal period and cumulatively may not exceed 20% of the Fees for that period. The foregoing Service Credits shall beCustomer’s sole and exclusive remedy with respect to inaccessibility of theSystem.
5. PROPRIETARY RIGHTS.
5.1 Customer Content.Customer shall retainownership in CustomerContent as inputinto the System.Customer Content will be available to Customer via the System during theTerm. Customer is solely responsible for any editorial control
associated with Customer Contentand is solely responsible forensuring that Customer Content is accurate, suitablefor use and distribution, and does not infringethe intellectual property rights of third-parties. Customer represents andwarrants that Customer has all rights, licenses, consents and releasesnecessary to provideall Customer Contentand other content,materials or data thatCustomer provides to Provider for the uses contemplated hereunder. As judgedsolely by Provider’s reasonable discretion, if any Customer Content does notcomply with terms of this Agreement or is otherwiseinappropriate, Provider may remove such Customer Content from the System orotherwise suspend Customer’s accessto such Customer Content. Customer should retain copiesof Customer Contentas such data will not be downloadable or accessible from the Systemafter termination of thisAgreement.
5.2 Licensed CustomerContent. If Customer and Provideragree in writingin advance in an Order Form or otherrecord (a “License Authorization”),Customer grants Provider a perpetual (except as otherwise provided in theLicense Authorization), irrevocable, non-exclusive right to use, disclose and distribute the specified CustomerContent in connection with Provider’s operations and the operationof the System, including the right to display such Customer Contentto other users of the System and to redistribute and createderivative works of such Customer Content (the “Licensed Customer Content”). Customer shall be entitled to receivesuch percentage of the charges paid by other users of the System to access theLicensed Customer Content as the Parties shall agree in the LicenseAuthorization (the “Customer ContentRevenue Share”). In consideration for the license, Providershall pay to Customer withinthirty (30) days after each anniversary of the effectivedate of this Agreement theCustomer Created Content Revenue collected by Provider in the year ending onsuch anniversary. Such payment shall be accompanied by a Customer ContentRevenue account summary. Customer acknowledges that Customer’s name or otheridentifying information will be considered part of the Licensed CustomerContent and usable by Provider to publicly identify Customer as the source ofsuch Licensed Customer Content.
5.3 System Content. As between Customer and Provider, all System Content and DerivativeContent, including all database, copyright, derivative works and otherintellectual property rights in such System Content and Derivative Content, shall be the property ofProvider. Customer acknowledges thatSystem Content and Derivative Content is proprietary to Provider, and Customeragrees not to use or disclose it except as expressly permitted in thisAgreement.
5.4 Customer Data. Customer shallretain ownership of Customer Data, and hereby acknowledges Provider’s right to collect the Customer Data. During the Term, Customerhereby grants to Provider a non-exclusive, worldwide, royalty-free right to use, copy, process store, transmit, distribute, perform and display(collectively, “Use”) the Customer Data forthe purpose of and to the extent necessary to perform its obligations hereunder and to comply withapplicable laws. During and after the Term hereof, Provider shall have theright to, and Customer hereby grants the irrevocable, non-exclusive, worldwide,royalty-free right to, Use and otherwise exploit the Customer Data inaggregated, anonymous and/or deidentified form (“Anonymized Data”) for Provider’s legitimate business purposes,including to analyze the use and performance of various aspects of the Systemand related technologies, to improve and enhance the System, and for otherdevelopment, diagnostic, testing and corrective purposes in connection with theSystem. For clarity, nothing in thisSection gives Provider the right to disclose the identity of Customer or anyindividual user as the source of Anonymized Data.
5.5 Suggestions. Customer grants Provider aroyalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, worldwide,transferable, sublicensable license to copy, modify, distribute and otherwiseuse any suggestions, enhancement requests, recommendations or other feedbackthat is provided by Customer or Customer’s Authorized Users relating to theSystem or its operation.
5.6 Assignment andFurther Assurances. To the extentthat a Party retains rights in any data, materials, intellectual property orother items in contravention of the allocation of ownership set forth in this Section5, such Party (the“Assigning Party”) agrees to andhereby grants, assigns and conveys to the other Party (the “Owning Party”) the Assigning Party’sright, title and interest, if any, in such items and in all patents,copyrights, moral rights and other intellectual property rights associatedtherewith. Each Party agrees tocooperate fully with the other for the purpose of securing, reserving andprotecting a Party’s ownership as set forth in this Section 5, includingexecuting any documents requestedby an Owning Party. Each Partyhereby acknowledges that nothing in this Agreement, including the allocation ofownership in this Section 5 shall affect anyrights to use data that a Party has lawfully obtained from the owner of suchdata independent of this Agreement.
5.7 Reservation ofRights. Except as otherwiseexpressly provided herein, nothing in this Agreement shall be deemed to grant,directly or by implication, estoppel or otherwise, any right or license withrespect to any technology or other intellectual property rights, and each Partyretains all right, title and interest in and to its respective technologies andother intellectual property rights.
6.1 Definition of Confidential Information. As used herein,“Confidential Information” means all confidential information disclosed by aParty (the “Disclosing Party”) tothe other Party (the “Receiving Party”),whether orally or in writing, that is designated as confidential or thatreasonably should be understood to be confidential given the nature of theinformation and the circumstances of disclosure. Provider’s ConfidentialInformation shall include the System and System Content; and the ConfidentialInformation of each Party shall include the terms and conditions of thisAgreement and all Order Forms, as well as businessand marketing plans,technology and technicalinformation, and businessprocesses disclosed by suchParty. A Receiving Party shall not reverse engineer, disassemble or decompileany samples, prototypes, software or other tangible objects provided by theDisclosing Party other than with the Disclosing Party’s express writtenauthorization. Confidential Information shall not includeany information that (a) is or becomesgenerally known to the publicwithout breach of any obligation owed to the Disclosing Party, (b) was known to the ReceivingParty prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party withoutbreach of any obligationowed to the Disclosing Party, or (d) was independently developed by theReceiving Party without use of or reliance upon the Confidential Information ofthe Disclosing Party.
6.2 Protection ofConfidential Information. A Receiving Party shall use the same degree of carethat it uses to protect theconfidentiality of its own Confidential Information of like kind (but in noevent less than reasonable care) (a) not to use any Confidential Information of the Disclosing Party for any purpose outsidethe scope of this Agreement, and (b) exceptas otherwise authorized by the Disclosing Party in writing, to limitaccess to Confidential Information of the Disclosing Party to those of its andits Affiliates’ employees, contractors and agents who need such access forpurposes consistent with this Agreement and who are bound byconfidentiality obligations no less stringentthan those herein.Neither Party shall disclose the terms of this Agreement nor any Order Form to any third party(other than in confidence to its Affiliates and their legal counsel,advisors and accountants) without the other Party’s prior written consent. Theobligation of confidentiality set forth in this Section 6.2 shall survive for a period of five (5) years beyondthe termination or expiration of this Agreement, provided that the confidentiality obligation of this Section6.2 as applied to Trade Secrets shall survive indefinitely until such TradeSecret is no longer a Trade Secret under applicable law.
6.3 Exceptions andCompelled Disclosure. Nothing in this Agreement shall prohibit a ReceivingParty from reporting a suspected violation of law to any governmental orregulatory agency and cooperating with such agency; from testifying truthfullyunder oath pursuant to subpoena or other legal process; or from makingdisclosures that are otherwise protected under applicable law or regulation. A Receiving Party is authorized to comply with any subpoenaor similar order thatmay seek Confidential Information, provided that, except to the extent that theReceiving Party is prohibited by law, the Receiving Party shall (a) notify theDisclosing Party promptly upon receipt of any such subpoena or similar order(and in any event prior to production of anyConfidential Information), and (b) providereasonable assistance, at the Disclosing Party’s cost, if theDisclosing Party wishes to contest the disclosure. If the Receiving Party iscompelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is notcontesting the disclosure, the Disclosing Party will reimburse the ReceivingParty for its reasonable cost of compiling and providing secure access. In anycase, the Receiving Party will disclose only that portion of the DisclosingParty’s Confidential Information which, based onthe reasonable advice of counsel,is legally requiredto be disclosed and will otherwise exerciseall reasonable efforts to obtain reliable assurance that DisclosingParty’s Confidential Information will be accorded confidential treatment.
6.4 Publicity. Notwithstanding the foregoing provisions of this Section 6, Provider shall have the right to identifyCustomer (by name and logo) publicly as a customer of Provider and user of theSystem for promotional purposes. Customer further agrees to participate inother Provider marketing efforts, including, case studies, reference calls, andpress testimonials unless otherwise provided in the Order Form.
7. DATA PROTECTION
7.1 In this Clause:
“AgreedPurposes” are the performance by each Party of its obligations and exerciseof its rights under this Agreement, including the access to the System inaccordance with the Agreement, and management of this Agreement and therelationship between the Parties.
“Controller”, “processor”, “data subject”,“personal data”, “personal data breach”, “processing” and “appropriate technical and organisationalmeasures” have the meaning set out in the Data Protection Laws.
“Data Discloser” means a Party that disclosesShared Personal Data to the other Party.
“PermittedRecipients” means the Parties, the employees of each Party, any thirdparties engaged to perform obligations in connection with this Agreement, andthe professional advisers of each Party.
“DataProtection Laws” means all applicable data protection and privacylegislation in force from time to time in the United Kingdom, includingthe Data Protection Act 2018 (as amended) ("DPA 2018") (and regulations made thereunder), the UKGDPR (as defined in section 3(10) (as supplemented by section 205(4)) of theDPA 2018), the General Data Protection Regulation EU 2016/679("GDPR"), the Privacy and Electronic Communications (EC Directive)Regulations 2003 (SI 2426/2003) ("PECR") (as amended), and any nationallaws or regulations constituting a replacement or successor regime tothe DPA 2018, UK GDPR or PECR.
7.2 “Shared PersonalData” means the personal data to be shared betweenthe parties under Clause 7 of this Agreement, which shall be confined to the followingcategories of information relevant to the following categories of data subject:
(a) the identity,job title/role and contact details of individual Customers or individualsworking for Customer organisations,and details of their communications with Provider relating to the Systems;
(b) the details of any Customer Authorized Users, whichshall be limited to the name and contact details (email address) which isprovided as part of the provision of the System;
7.3 This Clause sets out the framework for the sharingof personal data between the Parties as controllers. Each Party acknowledgesthat one Party (referred to in this Clause as the Data Discloser) will discloseto the other Party Shared Personal Data collected by the Data Discloser for theAgreed Purposes.
7.4 Each Party shall comply with all the obligations imposedon a controller under the DataProtection Laws, and any material breach of the Data Protection Laws by one Party shall,if not remedied within 30 days of written noticefrom the other Party,give grounds to the other Party to terminate this Agreement with immediateeffect.
7.5 Each Party shall:
(a) ensure that ithas all necessary notices and consents and lawful bases in place to enablelawful transfer of the Shared Personal Data to the Permitted Recipients for theAgreed Purposes (which will be necessity for the purposes of the legitimateinterests pursued by the Parties);
(b) give fullinformation to any data subject whose personal data may be processed under thisAgreement of the nature of such processing. This includes givingnotice that, on the termination of this Agreement, personal datarelating to them may be retained by or, as the case may be, transferred to oneor more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the AgreedPurposes;
(d) not disclose or allow access to the Shared PersonalData to anyone other than the Permitted Recipients;
(e) ensure thatall Permitted Recipients are subject to written contractual obligationsconcerning the Shared Personal Data (including obligations of confidentiality)which are no less onerous than those imposed by this Agreement;
(f) ensure that it has in place appropriate technicaland organisational measuresto protect againstunauthorised or unlawful processing of personal data and againstaccidental loss or destruction of, or damageto, personal data;
(g) train itspersonnel who have access to Shared Personal Data on its obligations to theother Party under this Agreement and also train its personnel on the principlesof the Data Protection Laws;
(h) not transferany personal data received from the Data Discloser outside the United Kingdomunless the transferor ensures that (i) the transfer is to a country approvedunder the applicable Data Protection Laws as providing adequate protection; or(ii) there are appropriate safeguards or binding corporate rules in placepursuant to the applicable Data Protection Laws; or (iii) the transferor otherwise complies withits obligations under the applicableData Protection Laws by providing an adequate level of protection to anypersonal data that is transferred; or (iv) one of the derogationsfor specific situations in theapplicable Data Protection Laws applies to the transfer.
7.6 Each Party shall assist the other in complying withall applicable requirements of the Data Protection Laws. In particular, eachParty shall:
(a) consult with the other Party about any notices givento data subjectsin relation to the SharedPersonal Data;
(b) promptlyinform the other Party about the receipt of any data subject rights requestrelating to the Shared Personal Data;
(c) provide the other Partywith reasonable assistance in complying with any data subject rightsrequest relating to the Shared Personal Data;
(d) not disclose, release, amend,delete or block any Shared Personal Data in response to a data subject rightsrequest without first consulting the other Party wherever possible;
(e) assist the other Party,at the cost of the other Party, in responding to any requestfrom a data subject relatingto the Shared PersonalData and in ensuring compliance with its obligations under the Data ProtectionLaws with respect to security,personal data breach notifications, data protection impact assessments andconsultations with the Information Commissioner or other regulators;
(f) notify the other Party withoutundue delay on becoming aware of any breach of the Data Protection Laws;
(g) at the written direction of theData Discloser, delete or return Shared Personal Data and copies thereof to theData Discloser on termination of this Agreement unless required by law to storethe Shared Personal Data;
(h) use compatible technology, where applicable, for the processing of Shared PersonalData to ensure that there isno lack of accuracy resulting from personal data transfers;
(i) maintain complete and accuraterecords and information to demonstrate its compliance with this Clause30 and allow for audits by theother Party or the other Party's designated auditor; and
7.7 The Parties shall review the effectiveness of thisdata sharing initiative every 12 months, having consideration to the aims and purposesset out in this Agreementand in this Clause 7. The Partiesshall continue or amend this Agreement dependingon the outcome of this review. The review of the effectiveness of thisdata sharing initiative will involve:
(a) assessing whether the purposesfor which the Shared Personal Data are being processedare still the oneslisted in Clause 7.1 of this Agreement;
(b) assessing whether the Shared PersonalData is still as listedin Clause 7.2 ofthis Agreement;
(c) assessing whether the legalframework governing data quality,retention, and data subjects’ rights are beingcomplied with; and
(d) assessing whether personal data breaches involving the Shared PersonalData have been handled in accordance with this Agreement and theapplicable legal framework.
Data Security. Provider shall, with respect to Customer Data, maintain datamanagement and security standardsand practices designed to prevent the unauthorizedaccess to or use or loss of any Customer Data and to protect againstanticipated threats or hazards to the security of the CustomerData. Provider will take commercially reasonable precautions (including backup, archive andbusiness continuity measures) to prevent the loss of or alteration to CustomerData and Customer Content stored in the System.
7.8 Subprocessing. Provider may subcontract for the storageor processing of Customer Data with a subcontractoror Affiliate (a “Subprocessor”). Ifthe Subprocessor has access to Shared Personal Data: (a) Provider shall carryout adequate due diligence before the Subprocessor first processes SharedPersonal Data, to ensure that the Subprocessor is capable of providing the level of protection for Shared Personal Data requiredby the Agreement; and (b) Provider shall enter into a written contract with such Subprocessorrequiring the Subprocessor to comply with obligations no less onerous thanProvider’s obligations under this Agreement, including appropriate contractualprovisions in accordance with relevant Data Protection Laws. Suchsubcontracting under this Section shall not release Provider from itsresponsibility for its obligations under this Agreement. Provider shall beresponsible for the work and activities of all Subprocessors.
7.9 Security Breach. If Provider learns of any actual misuse,compromise or unauthorized access or acquisition of Shared Personal Data in the possession or control ofProvider or its Subprocessor (a “SecurityBreach”), Provider will take appropriatemeasures to promptly stop and remedy the Security Breach, promptly notify Customer, cooperate withCustomer in limiting and addressing such Security Breach, and take all actionsas may be required under applicable Data Protection Laws. The Partieswill mutually agree upon the notification to be providedto affected partiesas a result of a Security Breach,provided that nothing shall prevent a party from complying with any of its obligations under applicable Data Protection Law or insurance policy.
8. TERM & TERMINATION.
8.1 Term. This Agreement shall beeffective as of the first date that Customer receives access to theSystem and shall expire upon completion of theinitial term Customer elects at the time of enrollment on the Order Form(the “Term”). The Term shallautomatically renew for additional one year terms, unless at least 90 daysprior to the end of the then-current Term either party gives writtennotice of non-renewal or otherwise cuts off renewalvia functionality providedin the System. Customer mayterminate this Agreement at any time by giving Provider written notice;provided, however, that no Fees will be refunded. Customer may also terminatethis Agreement if Provider materially breaches any provision of this Agreementand such breach remains uncured for thirty (30) days after written noticethereof; in the event of such a termination Provider will refund any unearned,prepaid Fees. Provider may terminatethis Agreement by giving written notice to Customer if Customer materiallybreaches any provision of this Agreement and such breach remains uncured forthirty (30) days after written notice thereof.
8.2 Effect ofTermination. Upon expirationor termination of this Agreement, the rights and License granted under thisAgreement shall immediately cease, and Customer and Customer’s Authorized Userswill immediately cease use of the System and return or destroy all Provider’sConfidential Information. Provider will return or destroy all Customer’sConfidential Information, except to the extent retention is necessary forcompliance purposes. Customer’s access to Customer Content via the System willterminate as of any such termination. Upon written notice by Customer no more than ten (10) daysfollowing the expiration or termination of this Agreement and payment of alloutstanding amounts due under this Agreement, Customer may download Customer Data and Customer Content from the System. Provider reserves the right in itsdiscretion to delete any Customer Contentand Customer Data beginning 30 days after termination of this Agreement. Sections 5, 8.2, 9, 10, 11, and 12 shall survive termination or expiration ofthis Agreement.
9. LIMITED WARRANTY AND DISCLAIMERS.
9.1 Limited Warranty. Provider hereby representsand warrants to Customer that during the Term the System will conform toapplicable Documentation (excluding those circumstances mentioned in Section11.5), contingentupon Customer’s acceptance of all corrections, enhancements, updates and newreleases provided by Provider to Customer and the absence of a breachof this Agreement, the malicious act of a third party, a modificationof the services requested byCustomer, unauthorized use, incorrect use, damage, or abuse to theSystem. THE EXCLUSIVE REMEDY FOR ANYBREACH OF THE FOREGOING WARRANTY SHALL BE THAT PROVIDER, IN RESPONSE TOWRITTEN NOTICE OF A WARRANTY CLAIM, SHALL, AT ITS OWN OPTION AND OWN EXPENSE,EITHER: (A) CORRECT THE NON-CONFORMITY OF THESYSTEM TO THE ABOVE STANDARD;OR (B) TERMINATE THIS AGREEMENTAND REFUND TO CUSTOMERANY UNEARNED, PREPAID FEES.
9.2 Third PartyEquipment. To the extentthat Provider provides Customer with any equipment, Provider will pass on toCustomer the benefit of any manufacturer’s warranty. If, pursuant to the terms of those warranties, the rightsthereunder are not assignable, Provider agrees, to the extent possible, to assert its rights underthose warranties, representations, and indemnities on behalfof Customer.
9.3 All OtherWarranties Excluded. TO THE MAXIMUMEXTENT ALLOWED BY LAW THE FOREGOING WARRANTIES IN THIS SECTION 9 AND SECTION 10 ARE IN LIEU OF ALLOTHER WARRANTIES, EXPRESS OR IMPLIED,INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, THAT THE CUSTOMER’S USE OF THE SYSTEM WIIBE UNITERRUPTED OR ERROR-FREE, FREEDOM FROM CONTAMINATION BY COMPUTER VIRUSES,AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS; NOR ARE THERE ANY WARRANTIESCREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. PROVIDER EXPRESSLY DISCLAIMS ANYREPRESENTATION OR WARRANTY THAT ACCESSOR USE OF THE SYSTEMWILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, OR THAT THE SYSTEM DATA WILL BE ACCURATE OR TIMELY. THE DISCLAIMER IN THIS SECTION 9.3 SHALL NOT LIMIT CUSTOMER’S RIGHT TO RECEIVESERVICE CREDIT AS PROVIDED IN SECTION 4.4.
10.1 ProviderIndemnification. Provider shallindemnify, defend and hold harmless Customer and Customer’s Affiliates and their directors, officers, employees and agents with respect to any claim, demand, cause of action,debt or liability, including reasonable attorneys’ fees, to the extentthat it is based upon any thirdparty claim (an “Infringement Claim”) that the System infringes any copyright, patent,trademark, Trade Secret or other intellectual property right of any thirdparty; provided, however, that Provider shall have no obligation pursuantto the foregoing indemnification provisionto the extent that any claim is based on or related to (a) CustomerContent or Customer Data, (b) use of the System in a manner not specified inrelevant Documentation or in violation of this Agreement, or (c) thecombination of the System with other programs, software, data, hardware or materials not provided by Provider. If Customer’s use of the System is enjoined by reason of an Infringement Claim, Provider’s sole obligation shall be to either (i)procure the right for Customer to continue using the System, or (ii) replace ormodify the components of the System subject to the Infringement Claim withnon-infringing components of substantially equivalent functionality, and ifneither (i) nor (ii) are available on a commercially reasonable basis, Providerwill refund any unearned, prepaid Fees, and this Agreement shall terminatewithout any further liability of Provider. Theforegoing states the entire liability of Provider with respect to anyInfringement Claim, and Customerhereby expressly waives any other liabilities.
10.2 CustomerIndemnification. Except as tothose matters for which Provider is obligated to indemnify Customer under Section 10.1, Customer shall indemnify, defend, and hold harmless Providerand its Affiliates and their directors,officers, employees and agents with respect to any claim, demand, cause ofaction, debt or liability, including reasonable attorneys’ fees, arising out of(i) Customer’s or Customer’s Authorized Users’ use of or reliance on the Systemor System Content; (ii) any violation by Customer of this Agreement; (iii) CustomerContent; or (iv) any acts or omissionsof Customer or Customer’sRepresentatives.
10.3 Indemnification Claims.A Party seekingindemnification hereunder (an “Indemnified Party”) shall give theParty from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt notice of the relevantclaim; provided, however, that failure to provide such notice shall not relievethe Indemnifying Party from its liability or obligation hereunder except to theextent of any material prejudice directly resulting from such failure; (b)reasonable cooperation, at the Indemnifying Party’s expense, in the defense ofsuch claim; and (c) the right to control the defense and settlement of any suchclaim, provided, however, that the Indemnifying Party shall not, without theprior written approval of the Indemnified Party, settle or dispose of anyclaims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the rightto participate in the defense at its own expense.
11. LIMITATIONS OF LIABILITY.
11.1 System Content. Except for itsobligations under Section 10.1, Provider and its Affiliates shall not beheld liable for any use of any SystemContent contained or made availablethrough the System.Provider will have no liabilityfor any errors in such SystemContent. Provider provides all System Content on an "AS IS” basis. The System Content could containinaccuracies, omissions or errors and is provided to all users for generalinformational purposes only. It does not constitute Professional Advice andshould not be relied upon as such. Customer expressly agrees that use of theSystem or any System Content derived or obtained therefrom is at Customer’ssole risk, and any misuse of System Content shall be Customer’s soleresponsibility. To the maximum extentpermitted by law, Provider shall not be liable for any loss,liability or damageof any kind resulting in any way from (a) any errors in or omissionsfrom the System or any System Content, (b) any Customer Content or DerivativeContent, (c) the unavailability or interruption of the System, any featuresthereof or any System Content available therein, (d) Customer’s use of the System, (e) use of or relianceon System Content,or (f) any delay or failure in performance of the System. Specifically, Provider is not responsible for any damages,losses or costs incurred as the result of lost profits or revenue, loss of use of the System, CustomerData or System Content, use of or reliance on System Content,loss of data, costs of recovering data, the costs of anysubstitute programs, claims by third parties, or other similar costs.
11.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENTWILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITSAFFILIATES OR ANY AUTHORIZED USER FOR CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING
PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, ORPROFITS; OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THISAGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENTWILL THE LIABILITY OF PROVIDER OR ITS AFFILIATES FOR LOSS OR DAMAGE RELATED TOTHIS AGREEMENT OR THE SYSTEM OR SYSTEM CONTENT, UNDER ANY THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER, IF ANY,TO PROVIDER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELYPRECEDING SUCH LOSS OR DAMAGE.
11.4 THE LIMITATIONS IN SECTIONS 11.2 AND 11.3 WILL NOT APPLYWITH RESPECT TO (a) A BREACH BY CUSTOMER OF SECTION 3.1 OR 3.2, (b) DAMAGES FORWHICH PROVIDER HAS AN OBLIGATION TO INDEMNIFY CUSTOMERUNDER SECTION 10.1, AND (c) DAMAGESFOR WHICH CUSTOMERHAS AN
OBLIGATION TO INDEMNIFY PROVIDER UNDER SECTION 10.2.The provisions of this Agreement allocate the risks between Customer andProvider. The Fees reflect thisallocation of risk and the limitations of liability herein.
11.5 Force Majeure.Customer acknowledges that the Internetis not owned or controlled by any singleentity, that the success oftransmissions using the Internet is in part dependent on servers andtelecommunications facilities outside of Provider’s control, and that transmission of data acrossthe public portionsof the Internet is inherently unsecure and is subject to interception or loss for reasons beyondProvider’s control. In no event shall Providerbe liable for missing, garbledor misdirected communicationsover the Internet or for Internet downtime or interruptions, System speed orslow down, or for the inability to access the System over the Internet. NeitherParty shall be responsible for delays or failures in performance resulting from acts or circumstances beyond the control ofsuch Party, including without limitation acts of God, strikes or other labordisputes, riots, acts of war, malfunction of portions of the Internet oranother third party network, governmental regulations promulgated after the effective date of this Agreement, communication line failures, power failures, equipmentfailures, fires or other disasters, and acts of third parties, includinghackers (each a “Force Majeure Event”); provided that such Party uses commercially reasonable efforts to, as soon asreasonably practicable, mitigate and correct such failure or delay inperformance.
12.1 Severability. Should any term or provisionof this Agreement be finallydetermined by a court of competentjurisdiction to be void, invalid,unenforceable or contraryto law or equity, the offending term or provisionshall be construed(a) to have been modified and limited (or if strictlynecessary, deleted) only to the extent requiredto conform to the requirements of law, and (b) togive effect to the intent of the Parties (including, without limitation, withrespect to the economic effect of th isAgreement), and the remainder of this Agreement (or, as the case may be, theapplication of such provisions to other circumstances) shall not be affectedthereby but rather shall be enforced to the greatest extent permitted by law.
12.2 Disputes. PLEASE READ THE FOLLOWINGPARAGRAPH CAREFULLY BECAUSE IT REQUIRES CUSTOMER TO ARBITRATE DISPUTES WITHPROVIDER AND IT LIMITS THE MANNER IN WHICH CUSTOMER
CAN SEEK RELIEF. Customeragrees that any claim, cause of actionand dispute arisingout of or related to this Agreement or the System, SystemContent or CustomerContent (“Claim”), will be resolvedby binding arbitration, rather than in court, except that Customer may asserta Claim in small claims court if such claimqualifies, and neitherParty is requiredto arbitrate any Claimfor injunctive relief for the alleged unlawfuluse of its intellectual property.Customer and Provideragree that any arbitration will occur in the LondonCourt of International Arbitration and that arbitration will be conducted confidentially by a single arbitrator in accordance with theUNCITRAL Arbitration Rules.
12.3 Modification andWaiver. Except as expressly providedherein, no other modification, amendment, supplement, or other change to thisAgreement will be effective unless set forth in writing and signed by dulyauthorized representatives of Provider and Customer. No waivers under this Agreement will be effective unlessexpressly set forth in writing and signed by a duly authorized representativeof the Party against whom enforcement thereof is sought. The failure of eitherParty to insist upon strict performance of any provision of this Agreement, orto exercise any right provided for herein, shall not be deemed to be a waiverof such provision or right with respect to subsequent claims (unless expresslyso stated in a valid amendment or waiver), and no waiver of any provision orright shall affect the right of the waiving Party to enforce any otherprovision or right herein.
12.4 Assignment. No right or obligation ofCustomer under this Agreement may be assigned, delegated or otherwisetransferred, whether by agreement, operation of law or otherwise, without theexpress prior written consent of Provider, and any attempt to assign, delegateor otherwise transfer any of Customer’s rights or obligations hereunder,without such consent, shall be void. Provider may assign, delegateor transfer its rights and obligations to another party that has the
appropriate meansfor fulfilling such rights orobligations without prior written notice to or consent of Customer. Subject to theforegoing, this Agreement shall bind each Party and its permitted successorsand assigns.
12.5 Notices. Any notice orcommunication permitted or required to be made by a Party hereunder shall be inwriting and shall be delivered in person or by courier, sent by facsimile,transmitted via e-mail, or mailed by certified or registered mail, postage prepaid,return receipt requested, and addressed to the otherParty using the contact information set forth in theOrder Form. Provider may provide notice to Customer via the System or inwriting using the methods set forth in this Section using the contactinformation that Customersupplied upon enrollment in the System.Either Party may change its contactinformation by notice given in accordance with this Section 12.5. All notices shall be effective upon receipt.
12.6 Insurance. Provider, at its own cost, shall procure, maintain, and keep in force and effect commercial general liability insurance to cover claims (including, but notlimited to, claims brought by its employees or Subcontractors) that may arise out of or result from its operations and performance under this Agreement. The limits of such liability insurance shall be no less than £10,000,000 per occurrence.In addition to the foregoing, Provider shall also maintain a professionalerrors and omissions insurance policy with a minimum limit of £5,000,000 peroccurrence. Provider shall, upon request by Customer, provide certificates ofinsurance to document the existence of such policies.
12.7 ExportCompliance. Neither partyshall export, directly orindirectly, any technical data acquired from the other party under thisagreement (or any products, including software, incorporating any such data) in breach of any applicablelaws or regulations (Export Control Laws),including United States export laws and regulations, to any country forwhich the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtainingsuch licence or approval. .
12.8 Construction. The captions and section andparagraph headings used in this Agreement are inserted for convenience only andshall not affect the meaning or interpretation of this Agreement.The terms “include” and “including”are not limiting.
12.9 Relationship ofParties. Provider and Customer areindependent contracting parties. ThisAgreement shall not constitute the Parties as principal and agent, partners,joint venturers, or employer and employee.
12.10 Third Party Beneficiaries. With the exception of the indemnified parties specified in Section 10, which shall be consideredthird party beneficiaries of this Agreement with respect to suchindemnification obligations, the Parties do not intend, nor shall any clause be interpreted, to create under this Agreement any obligations of eitherParty in favor of, or benefits to, or rights in, any thirdparty.
12.11 Governing Law; Attorneys’ Fees. This Agreement, its interpretation, performance and enforcement, any andall disputes related in any way to it, and all other matters related in any wayto it, shall be governed by the laws of England & Wales, without givingeffect to any conflict of law principles or choice of law principles. In anyaction between the parties seeking enforcement of any of the provisions of this Agreement, the prevailing party in such action shallbe awarded, in additionto damages, injunctive or other relief, its reasonable costs and expenses, notlimited to taxable costs, and reasonable legal professional fees.