Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
“Acquire” means Tagove Limited, incorporated and registered in Delaware with company number 5898503 whose principal place of business is at 50 Fremont Street, Suite 2250, San Francisco, CA 94105.
“Authorised Users” means those employees, agents and independent contractors of the Customer or of the Customer’s suppliers or business partners who are authorised by the Customer to use the Services and the Documentation.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the State of California when banks in the State of California are open for business.
“Conditions” means these terms and conditions set out in Clause 1 (Definitions and Interpretation) to Clause 20 (Governing Law and Jurisdiction) (inclusive).
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 10.5 or Clause 10.6.
“Contract” means the contract between the Customer and Acquire for the supply of the Services and the Software in accordance with the Order Form, these Conditions and the SLA.
“Customer” means the organisation referred to in the Order Form who purchases a subscription to access the Services and the Software from Acquire.
“Customer Data” means the data inputted by the Customer, Authorised Users, or Acquire on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
“Documentation” means any documentation made available to the Customer by Acquire which sets out a description of the Services and/or the Software and the user instructions for the Services and/or the Software.
“Initial Subscription Term” means 12 months.
“Order Form” means the order form signed by the Customer and Acquire for the provision of the Services.
“Renewal Period” means the period described in Clause 13.1.
“Services” means the subscription services provided by Acquire to the Customer under this Contract.
“SLA” the service level agreement for providing support in relation to the Services and the Software together with uptime commitments in relation to the availability of the Services.
“Software” any software applications provided by Acquire as part of the Services including, without limitation, any plugins or code.
“Start Date” means the date referred to as the Start Date on the Order Form.
“Subscription Fees” means the subscription fees payable by the Customer to Acquire for the User Subscriptions as referred to in the Order Form.
“Subscription Term” has the meaning given in Clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
“UK Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to Clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Contract.
“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 rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. shall include the singular.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with the Contract, Acquire grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services, the Software and the Documentation during the Subscription Term solely for the Customer’s business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services, the Software and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services, the Software and/or the Documentation;
(c) each Authorised User shall keep a secure password for his or her use of the Services and the Documentation and that each Authorised User shall keep his or her password confidential;
(d) it shall permit Acquire or Acquire’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and Acquire’s data processing facilities to audit compliance with the Contract;
(e) if any of the audits referred to in Clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Acquire’s other rights, the Customer shall promptly disable such passwords; and
(f) if any of the audits referred to in Clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to Acquire, then without prejudice to Acquire’s other rights, the Customer shall pay to Acquire an amount equal to such underpayment as calculated in accordance with Acquire’s then current price lists within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images or promotes unlawful violence;
(d) is discriminatory based on race, gender, color, religious belief, sexual orientation, age, or disability; or
(e) is otherwise illegal or causes damage or injury to any person or property;
Acquire reserves the right, without liability or prejudice to its other rights with respect to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
- (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation in any form or media or by any means; or
- (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services, the Software and Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation; or
(c) except to the extent expressly permitted under the Contract use the Services, the Software and/or Documentation to provide services to third parties; or
(d) subject to Clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorised Users;
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this Clause 2;
(f) introduce or permit the introduction of, any Virus into Acquire’s network and information systems; or
(g) otherwise access or use the Services, the Software, or the Documentation beyond the scope of the authorization granted under the Contract.
2.5 The Customer shall use all its best endeavours to prevent any unauthorised access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorised access or use, immediately notify Acquire.
2.6 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Additional User Subscriptions
3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Acquire shall grant access to the Services, the Software and the Documentation to such additional Authorised Users in accordance with the provisions of the Contract.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Acquire in writing. Acquire shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where Acquire approves the request, Acquire shall activate the additional User Subscriptions and invoice the Customer for the Subscription Fees payable in respect of the additional User Subscriptions. The Customer shall pay such invoice within 30 days of receipt.
3.3 If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be prorated from the date of activation by Acquire for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 Acquire shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of the Contract.
4.2 Acquire shall use all reasonable commercial endeavours to make the Services available 24 hours a day, seven days a week, except for any unavailability due, in whole or in part, to any (a) act or omission by Customer or any Authorised User, (b) Customer’s or its Authorised User’s internet connectivity, (c) delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Contract, (d) maintenance carried out by Acquire or its representatives provided that Acquire has used reasonable endeavours to give the Customer at least 4 hours’ notice in advance of such maintenance, or (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Acquire pursuant to the Contract.
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Acquire shall be for Acquire to use reasonable commercial endeavours to restore the lost or damaged Customer Data. Acquire shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party. If any loss or damage to Customer Data is caused by the Customer or any of its employees, agents or contractors then Acquire may charge the Customer for the reasonable costs of restoring the Customer Data, such costs to be agreed between Acquire and the Customer in advance.
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.4 The parties acknowledge that:
(a) if Acquire processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the Customer is the controller and Acquire is the processor for the purposes of the Data Protection Legislation.
(b) the scope of the processing is the processing of personal data of the Customer’s subscribers to enable the Customer to use the Services. The nature and purpose of the processing is the capture of the personal data of the Customer’s subscribers on Acquire’s platform so that the Customer has the contact details of its subscribers and access to its subscribers’ devices to trouble-shoot any issues that the subscribers are facing. The duration of the processing is the duration of the Contract and a reasonable period after its term to enable the parties to comply with the Data Protection Legislation and the Customer to instruct Acquire on the transfer or destruction of the relevant personal data. The types of personal data are the contact details of the Customer’s subscribers and such other personal data collected as part of the Services. The categories of data subject are the subscribers of the Customer and such other data subjects whose personal data is collected in connection with the provision of the
(c) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Acquire’s other obligations under the Contract.
5.5 Without prejudice to the generality of Clause 5.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Acquire for the duration and purposes of the Contract so that Acquire may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf.
5.6 Without prejudice to the generality of Clause 5.3, Acquire shall, in relation to any personal data processed in connection with the performance by Acquire of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless Acquire is required by the laws of any member of the European Union or by the laws of the European Union applicable to Acquire and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Acquire is relying on Applicable Laws as the basis for processing personal data, Acquire shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Acquire from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
- (i) the Customer or Acquire has provided appropriate safeguards in relation to the transfer;
- (ii) the data subject has enforceable rights and effective legal remedies;
- (iii) Acquire complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- (iv) Acquire complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject 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;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
(f) maintain complete and accurate records and information to demonstrate its compliance with this Clause 5 and immediately inform the Customer if, in the opinion of Acquire, an instruction infringes the Data Protection Legislation.
5.7 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, 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, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.8 The Customer does not consent to Acquire appointing any third party processor of personal data under the Contract.
6.1 Acquire undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care and that the Software will function substantially in accordance with the Documentation.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or the Software contrary to Acquire’s instructions, or modification or alteration of the Services or the Software by any party other than Acquire or Acquire’s duly authorised contractors or agents. If the Services or the Software do not conform with the foregoing undertaking, Acquire will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1. Notwithstanding the foregoing, Acquire:
(a) does not warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free; or that the Services, the Software, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible 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 Services, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.1 The Customer shall:
(a) provide Acquire with:
- (i) all necessary cooperation in relation to the Contract; and
- (ii) all necessary access to such information as may be required by Acquire;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services and any Software;
(b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Acquire may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services, the Software and the Documentation in accordance with the Contract and shall be responsible for any Authorised User’s breach of the Contract;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Acquire, its contractors and agents to perform their obligations under the Contract, including, without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Acquire from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Acquire’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
7.2 If Customer becomes aware of any actual or threatened activity prohibited by the Contract, Customer shall, and shall cause its Authorised Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Acquire of any such actual or threatened activity.
Charges and Payments
8.1 The Customer shall pay the Subscription Fees to Acquire for the User Subscriptions in accordance with this Clause 8.
8.2 Acquire shall invoice the Customer:
(a) on the Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to Clause 13.1, on each anniversary of the Start Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days of receipt.
8.3 If Acquire has not received a payment due to it under the Contract by its due date, then, without prejudice to any other rights and remedies of Acquire:
(a) Acquire may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Software and Acquire shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid;
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the Bank of England’s base rate from time to time (or if such base rate is zero or below zero then 8%), commencing on the due date and continuing until fully paid, whether before or after judgment; and
(c) Customer shall reimburse Acquire for all costs incurred by Acquire in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
8.4 All amounts and fees stated or referred to in the Contract:
(a) shall be payable in United States Dollars;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of taxes and similar assessments, which shall be added to Acquire’s invoice(s) at the appropriate rate, if applicable. Without limiting the foregoing, Customer is solely responsible for all local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes on any amounts payable by Customer hereunder. If Acquire has a legal obligation to pay or collect such taxes for which Customer is responsible under the Contract, the appropriate amount shall be computed based on Customer’s address which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Acquire with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.5 Acquire shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3.3, at the start of each Renewal Period upon 30 days’ prior notice to the Customer.
9.1 The Customer acknowledges and agrees that Acquire and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation including, without limitation, in the product of any development and/or integration work that Acquire may carry out for the Customer. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software, the Documentation or of the product of any development and/or integration work that Acquire may carry out for the Customer.
9.2 Acquire confirms that it has all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under the Contract.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to Clause 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the provisions of the Contract.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Customer acknowledges that details of the Services constitute Acquire’s Confidential Information.
10.6 Acquire acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 The above provisions of this Clause 10 shall survive termination of the Contract, however arising.
11.1 The Customer shall defend, indemnify and hold harmless Acquire, its affiliates, and each of its and their respective past and present directors, officers, employees, agents, subcontractors, successors and assigns against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (i) the Customer’s use of the Services and/or Documentation, (ii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Contract, (iii) any materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorised User, or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorised User, or any third party on behalf of Customer or any Authorised User, in connection with the Contract, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Acquire provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 Acquire shall defend the Customer, its officers, directors and employees against any claim that the Services, the Software or the Documentation infringes any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Acquire is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Acquire in the defence and settlement of such claim, at Acquire’s expense; and
(c) Acquire is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Acquire may procure the right for the Customer to continue using the Services, the Software or the Documentation, replace or modify the Services, the Software or the Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall Acquire, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services, the Software or Documentation by anyone other than Acquire; or
(b) the Customer’s use of the Services, the Software or Documentation in a manner contrary to the instructions given to the Customer by Acquire; or
(c) the Customer’s use of the Services, the Software or Documentation after notice of the alleged or actual infringement from Acquire or any appropriate authority.
11.5 The foregoing and Clause 12.3(b) states the Customer’s sole and exclusive rights and remedies, and Acquire’s (including Acquire’s affiliates, and each of its and their respective past and present directors, officers, employees, agents, subcontractors, successors and assigns) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of Liability
12.1 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. Acquire shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Acquire by the Customer in connection with the Services, or any actions taken by Acquire at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
12.2 Nothing in the Contract excludes the liability of Acquire:
(a) for death or personal injury caused by Acquire’s gross negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to Clause 12.1 and Clause 12.2:
(a) Acquire shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
(b) Acquire’s total aggregate liability in contract (including in respect of the indemnity at Clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Term and Conditions
13.1 The Contract shall, unless otherwise terminated as provided in this Clause 13, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of the Contract; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other provisions of the Contract which breach is irremediable or (if such breach is remediable) such party fails to remedy that breach within a period of 15 days after being notified in writing to do so; or
(c) the other party makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed;
13.3 On termination of the Contract for any reason:
(a) all rights, licences, consents, and authorizations granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Software and/or the Documentation;
(b) the Customer shall immediately and permanently erase any Software made available or supplied by Acquire to the Customer and contained within any of the Customer’s platforms, networks or systems;
(c) each party shall promptly return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) Acquire may destroy or otherwise dispose of any of the Customer Data in its possession unless Acquire receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Acquire shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Acquire in returning or disposing of Customer Data;
(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 Contract which existed at or before the date of termination shall not be affected or prejudiced; and
(f) Acquire may disable all Customer and Authorised Users access to the Services, the Software, and the Documentation; and
(g) if Acquire terminates the Contract pursuant to Clause 13.2(a) or Clause 13.2(b), all Subscription Fees that would have become payable had the Contract remained in effect until the expiration of the Subscription Term will become immediately due and payable, and Customer shall pay all such Subscription Fees, together will all previously-accrued but not yet paid Subscription Fees, on receipt of Acquire’s invoice therefor.
13.4 Acquire may, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorised User’s, or any other person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) Acquire receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Acquire to do so; or (b) Acquire believes, in its sole discretion, that: (i) Customer or any Authorised User has failed to comply with any term of the Contract, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the Contract; (ii) Customer or any Authorised User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) the Contract expires or is terminated. This Clause 13.4 does not limit any of Acquire’s other rights or remedies, whether at law, in equity, or under the Contract.
13.5 The provisions set forth in the following sections, and any other right or obligations of the parties in the Contract that, by its nature, should survive termination or expiration of the Contract, will survive any expiration or termination of the Contract: Clause 2.4, Clause 9, Clause 10, Clause 11, Clause 12, this Clause 13.4, and Clause 20.
Acquire shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Acquire or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, or any other circumstance outside the reasonable control of Acquire, provided that the Customer is notified of such an event and its expected duration.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Notwithstanding anything to the contrary contained herein, in the event these Conditions are or were altered, modified, or otherwise changed during the course of a parties’ negotiations and discussions, these Conditions as altered, modified or changed from such negotiations and discussions shall govern and control over any materially inconsistent or otherwise directly conflicting terms and conditions otherwise applicable to the Services, whether agreed before or following the Start Date.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
17.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
17.2 If any provision or part-provision of the Contract is deemed deleted under Clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1 The Contract constitutes the sole and 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.
18.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Neither party shall, without the prior written consent of the other, assign or transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Governing Law and Jurisdiction
The Contract shall be enforced, governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The sole jurisdiction and venue for actions related to the subject matter of this agreement shall be a federal or state court located in California.