Terms & Conditions.
By clicking “I accept” when signing up to our platform you confirm that you have read, and agree to be bound by, these terms and conditions.
Terms and Conditions
1. Definitions and interpretation
1.1 The following words shall have the corresponding meanings:
Account Details: the information about you, your company and the package that you’ve selected that are detailed in the “Your Account” section of our website;
Authorised User: any individual authorised user who is authorised by you to use the Services and the Documentation in accordance with the terms of these Terms (and who may be engaged by the Customer);
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK;
Charges: the charges payable by you for the Services comprising the Subscription Fees, the Support Fees and any fees in relation to the benchmarking services, as set out in the Account Details, subject to increases in accordance with these Terms;
Confidential Information: means any and all documentation, materials, software, code and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, clients, pricing, transactions, software, suppliers or methods of one party and disclosed to the other in connection with these Terms;
Contract: means the contract which comes into existence when these Terms are accepted by you for the supply of Services to you;
Customer, you and your: the individual or business whose details are set out in the Account Details;
Customer Personal Data: all personal data processed by us in respect of which you are the controller including personal data obtained as a result of use of the Tracker and personal data processed as a result of our provision of benchmarking services, where applicable;
Data Protection Laws: means (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, together with any national implementing laws, regulations and secondary laws as amended or updated from time to time in the UK including the Data Protection Act 2018 (the “DPA”); (ii) the UK GDPR; (iii) any successor legislation to GDPR, the DPA and the UK GDPR; and (iv) any other directly applicable regulation relating to data protection and privacy;
Data Subject: an individual customer of the Customer in respect of whom Customer Personal Data is processed as a result of our provision of the Services and in respect of whom the Tracker collects information (including Customer Personal Data);
Defect: an error in the Software that causes it to fail to operate substantially in accordance with the description of the services that form part of the then current Documentation;
Documentation: all documentation made available to you online via Your Account which sets out a description of the Services and user instructions for the Services;
Effective Date: the date that you click “I accept” to confirm that you agree to these Terms or otherwise confirm to us in writing that you agree to these Terms;
Initial Term: the initial period of the Contract as set out in the Account Details and if nothing is specified then 3 months from the Effective Date;
Insolvency Event: the other party: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or passes a resolution to place the company into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
Intellectual Property: any current and future intellectual property rights and interests including patents, utility models, designs, design rights, copyright (including rights in software), decryption rights, database rights, trade marks, rights pursuant to passing off, service marks, business and trade names, domain names, know-how, topography rights, inventions, rights in confidential information (including technical and commercial trade secrets) and image rights, and rights of a similar or corresponding character in any part of the world, in each case whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world;
Normal Business Hours: 9:00 a.m. to 5:00 p.m. (Monday to Friday) local UK time, each Business Day;
Notice Period: the period of notice that the Customer must give (the Contract ending on the date determined pursuant to 8.1);
parties: you and us and “party” shall be construed accordingly;
Service Pack: one of the service packs described in the Account Details and in respect of which more details are contained in the Documentation;
Services: the subscription services and/or benchmarking services provided by us to you pursuant to these Terms (delivered using the Software and including the provision of any agreed Documentation) via Your Account or any other website notified to you by us from time to time, as more particularly described in the Documentation;
Software: the data analytics software provided by us to you as part of the Services;
Subscription: a Service Pack subscription purchased by you entitling you to upload your data to Your Account in order that you can access and use the Services in accordance with these Terms, as detailed in the Account Details;
Subscription Fee: the subscription fee payable by you to us for your Subscription as set out in the Account Details;
Support Services: the support services to be provided by us pursuant to these Terms as set out in clause 5;
Term: has the meaning set out in clause 8.1;
Tracker: the piece of software (a ‘cookie’) bespoke to the Services that is provided by us for inclusion on your website(s);
UK GDPR: after 31 December 2020, the retained EU law version of GDPR as it forms part of the law of England and Wales, by virtue of the European (Withdrawal) Act 2018, as modified by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, as amended from time to time;
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
Year: the period of 12 months from the Effective Date and each period thereafter commencing on subsequent anniversaries of the Effective Date;
Your Account: the web account through which the Services are delivered, being https://app.sweetanalytics.com/login (the administration functions being accessed through https://partners.sweetanalytics.com); and
Your Default: has the meaning set out in clause 3.5.
1.2 Any words following the terms “including”, “include”, “for example” or any similar expression are by way of illustration and emphasis only and shall not limit the generality or extent of any words or expressions.
1.3 “These Terms” is a reference to these Terms and each of the Schedules as amended or supplemented at the relevant time.
2.1 Subject to you purchasing the Subscriptions in accordance with clause 2.5 and clause 6, the restrictions set out in this clause 2 and the other terms and conditions of these Terms, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Term solely for your internal business operations.
2.2 You shall:
2.2.1 not allow or suffer any Subscription to be used by any party other than you;
2.2.2 either alone or with our support, configure the Services and upload of Customer User Data to Your Account. You are responsible for all actions undertaken by or on behalf of you in respect of the Services;
2.2.3 permit us or our designated auditor to audit your use of the Services in order to establish that the Subscription parameters are not been exceeded, and further to review your data processing facilities to audit compliance with these Terms. Each such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
2.2.4 if any of the audits referred to in clause 2.2.3 reveal that you have underpaid Charges to us, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with our prices then in force within 10 Business Days of the date of the relevant audit.
2.3 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services In relation to the Authorised Users, you undertake that:
2.3.1 each Authorised User shall keep a secure password for their use of the Services and Documentation and such password shall be kept confidential;
2.3.2 you shall maintain of the list of current Authorised Users on Your Account, or off-line if we agree this is acceptable,
and, in the event of any such unauthorised access or use, promptly notify us.
2.4 The rights provided by this clause 2 are granted to you only, and shall not be considered granted to any of your subsidiaries or holding companies.
2.5 You may not use the Services in any manner until the agreed date that Services are to commence. You will be liable to pay the monthly charges in respect of that Subscription, taking effect from the 1st day of the month in which the Subscription is activated.
2.6 You may change the Service Pack selected for a Subscription at any time. We will facilitate the change to Service Pack as soon as reasonable practicable. If the change to the Subscription occurs midway through a month, then:
2.6.1 if the new Service Pack is more expensive than the current Service Pack, you will pay an increased sum from the commencement date on a pro rata basis for the balance of the month, and the new price shall apply in full from the 1st day of the following month; or
2.6.2 if the new Service Pack is less expensive than the current Service Pack, the price will remain unchanged until the end of the current month.
2.7 You may not select a lower cost Service Pack for a Subscription within 2 months of the commencement of the current Service Pack.
2.8 Without prejudice to clause 2.9, if you obtained a free trial of our Services, you will be automatically enrolled on to a Subscription at the end of the free trial for Services the same as those provided to you as part of the free trial. These Terms will apply to your Subscription.
2.9 If you wish to cancel the Services at the end of your free trial, you shall provide us with no less than seven days’ notice before the end of the free trial period, in which case you will not be automatically enrolled on to a Subscription in accordance with clause 2.8 above.
3. Your obligations
3.1 You shall:
3.1.1 procure and maintain your network connections and telecommunications links from your systems to the internet and ensure that your network and systems comply with the relevant specifications provided by us from time to time;
3.1.2 co-operate with us in all matters relating to these Terms;
3.1.3 provide us with such information and materials we may reasonably require in order to supply the Services, including the Customer User Data, and ensure that such information is complete and accurate in all material respects;
3.1.4 obtain and maintain all necessary licences, consents and permissions necessary for us, our contractors and agents to perform their obligations under these Terms, including the Services;
3.1.5 comply with all applicable laws and regulations with respect to your activities under these Terms;
3.1.6 carry out all other responsibilities set out in these Terms in a timely and efficient manner; and
3.1.7 ensure that Authorised Users use the Services and the Documentation in accordance with these Terms and you shall be responsible for any breach by the Authorised Users of these Terms.
3.4 You shall own all right, title and interest in and to all of the Customer User Data and shall have sole responsibility for the legality, reliability, integrity and quality of all such Customer User Data. You should always maintain a backed-up copy of all Customer User Data independently of Your Account provided as part of the Services and you should never use the Services as the sole source of the Customer User Data.
3.5 If our ability to perform the Services is prevented by any failure by you to fulfil any of your obligations (Your Default), then:
3.5.1 without limiting or affecting any other right or remedy available to us, we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances, Your Default may entitle us to terminate the Contract under clause 8;
3.5.2 we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure to perform the Services; and
3.5.3 it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or occur arising directly or indirectly from Your Default.
3.6 You shall not (and shall not procure a third party to), 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 these Terms:
3.6.1 make adaptations or variations of the Software without our prior written consent;
3.6.2 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or any part of them, in any form or media or by any means;
3.6.3 licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services (or any party of them) available to a third party;
3.6.4 access all or any part of the Services in order to build a product or service which competes with the Services;
3.6.5 use the Services to provide services to third parties (other than as permitted pursuant to clause 3.7);
3.6.6 attempt to reverse compile, disassemble, decompile, reverse engineer, reverse translate, reduce to human-perceivable form or in any other manner decode all or any part of the Services, except as permitted by law; or
3.6.7 attempt to obtain, or assist third parties in obtaining, access to the Services (or any part of them) other than as provided under these Terms;
3.6.8 introduce or permit the introduction of, any Virus into our network and information systems; and/or
3.6.9 access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services and/or Documentation that:
18.104.22.168 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
22.214.171.124 facilitates illegal activity;
126.96.36.199 depicts sexually explicit images;
188.8.131.52 promotes unlawful violence;
184.108.40.206 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
220.127.116.11 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and we reserve the right, without liability or prejudice to our other rights to you, to disable the access of the relevant user to any material that breaches the provisions of this clause 3.6.
3.7 If available, you may access the demonstration elements of Your Account at any time, but may not use the Services to process any Customer User Data.
4. Our Obligations
4.1 We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these Terms.
4.2 Subject to clause 4.6 below, the Services will be performed with reasonable skill and care and substantially in accordance with the Documentation.
4.3 If the Services do not conform with clause 4.1, we will, at our expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide you with alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of clause 4.1.
4.4 Clause 4.1 shall not apply to the extent that any non-conformance is caused by use of the Software contrary to our instructions, or modification or alteration of the Software by any party other than our duly authorised contractors or agents.
4.5 We shall make the Tracker available to you when you are registered to use the Services. We are not responsible if the Tracker does not collect the anticipated data if you make modifications to your website that causes the functioning of the Tracker to be disrupted.
4.6 We do not warrant that:
4.6.1 your use of the Services will be uninterrupted or error-free;
4.6.2 the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; or
4.6.3 the Software or the Services will be from Viruses.
4.7 We are not responsible for any failures caused by factors outside of our control.
4.8 We are 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 you acknowledge that the Software and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.9 The rights provided in these Terms are granted to you only and you shall not be considered granted to any subsidiary or holding company.
4.10 These Terms shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
4.11 We shall follow its archiving procedures for Customer User Data as set out in our back up policy that is available on Your Account, as such document may be amended by us in our sole direction from time to time. If there is any loss or damage to Customer User Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer User Data from the latest back-up of such Customer User Data maintained by us in accordance with our archiving procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer User Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer User Data maintenance and back-up for which we shall remain fully liable).
5.1 We shall provide the Services including making available the Documentation to you on and subject to these Terms.
5.2 We shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
5.2.1 planned maintenance carried out during the maintenance window of 12.01am to 5am (GMT); and
5.2.2 unscheduled maintenance that we will endeavour to perform outside Normal Business Hours (taking account of the nature and severity of the issue giving rise to the unscheduled maintenance), provided that we use reasonable endeavours to give you reasonable notice in advance.
5.3 We will ensure that reasonable support is available by the channels made available on Your Account or by email during our Normal Business Hours to provide assistance to you in respect of the following:
5.3.1 remedying Defects in the Software; and
5.3.2 providing advice on the use of the Software.
5.4 We will use reasonable endeavours to resolve Defects notified to us by you in a timely manner appropriate to the seriousness of the circumstances in accordance with the procedures set out in the service documentation available on Your Account. If a Defect is notified to us:
5.4.1 within one Business Day of such notification, we shall acknowledge receipt of the notification and shall determine, in accordance with you, how seriously the Defect affects your operations;
5.4.2 if a notified Defect halts or substantially impairs your operations which use of the Software, we shall:
18.104.22.168 start work on resolving the Defect within one Business Day of receipt of such notification;
22.214.171.124 use all reasonable efforts to correct the Defect as soon as possible; and
126.96.36.199 keep you informed of progress towards correction of the Defect.
5.4.3 if a notified Defect, while not halting or substantially impairing your operations, causes those operations to become significantly slowed or causes substantial inconvenience, we shall commence work on correcting the Defect within 5 Business Days of receipt of such notification and shall use all reasonable efforts to correct the Defect as soon as possible; and
5.4.4 in the case of Defects other than those listed in clause 5.4.2 and clause 5.4.3, we shall start work on correcting the Defect as soon as our workload allows and shall use commercially reasonable efforts to correct the Defect.
5.5 We shall use reasonable efforts to ensure the accurate migration of any data but give no warranties as to the completeness or accuracy of such migration. You are responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to us of any inaccuracies or omissions in order to permit us to correct them.
5.6 The terms in this clause 5.6, clause 5.7 and clause 5.8 apply where you have opted as part of our client onboarding process to receive benchmarking services from us (either separately from or together with the subscription services):
5.6.1 although you may select the industry sector and sub-sector in relation to which you will receive benchmarking statistics as part of the onboarding process, we reserve the right to reclassify your industry sector and sub-sector if the structure of the benchmarking services changes and your original choices are no longer applicable or available;
5.6.2 we are under no obligation to publish benchmarking statistics unless at least six (or such other number as is notified to you from time to time) of our clients have signed up to receive benchmarking services in relation to the same industry sector and sub-sector; and
5.6.3 subject to clause 5.7, the benchmarking services will be provided to you free of charge.
5.7 Notwithstanding clause 5.6.3, we reserve the right to charge you for the benchmarking services provided that such charges shall not come into effect until at least 30 days has passed since providing you with notice of our intention to do so. If you notify us that you do not wish to pay the charges for the benchmarking services we will cease to provide the benchmarking services to you at the end of the 30 day period.
5.8 If you do not notify us in accordance with clause 5.7, and you continue to receive and pay for benchmarking services, you have the right at any time during the Contract to cancel these services upon not less than 30 days’ notice to us in writing. Where notice to cancel has been served in accordance with this clause 5.8, we shall be entitled to issue an invoice to you for any benchmarking services provided (but not yet paid for) up to the date of cancellation, which shall be payable by you in accordance with clause 6.2.
6. Charges & payment
6.1 The Charges are set out in the Account Details. Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of the VAT at the applicable rate at the same time as you pay the Charges.
6.2 We may issue an invoice for the Charges at the intervals set out in the Account Details and in the absence of any specified time we may issue an invoice for each month prior to the start of that month. Payment shall be made in pounds sterling at the end of the period of Service to which the invoice relates or, if less, by no later than 30 days following the date of invoice. We may collect this using credit card details, standing order or direct debit, as we agree. If you do not pay the sums invoiced in advance of a month, the Services will be suspended until payment is made (with no reduction in the Charges for the period that the payment is outstanding).
6.3 We may vary the Charges from time to time by providing you with no less than 30 days’ written notice of such changes. If you do not accept the changes to the Charges, you must notify us in writing within 14 days of our written notice. If you do not provide us with such notice, or you pay your next invoice, you shall be deemed to have accepted our changes.
6.4 All amounts due under these Terms must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Intellectual property rights
7.1 We warrant that the Software, the Services and the Documentation are our and/or our licensors property and we have the right to licence all Intellectual Property Rights in them to you.
7.2 You acknowledge that all Intellectual Property Rights in the Services (including the Software, the Tracker and the Documentation) belong to us, and you shall have no rights in or to the any part of the Services (including the Software and the Documentation) other than the right to use it in accordance with these Terms.
7.3 We acknowledge that all Intellectual Property Rights in the Customer User Data (including data relating to website users that is generated by the Tracker) belong to you, and we shall have no rights in or to the any part of the Customer User Data other than the right to use it in accordance with these Terms.
7.4 You agree that we may anonymise and aggregate Customer Data (including with data from third parties that also receive Services from us) for the purpose of creating insight reports and similar.
8. Duration and Termination
8.1 The Contract shall commence on the Effective Date and, subject to earlier termination in accordance with its terms, shall continue for the Initial Term and thereafter unless and until terminated by either party giving the other party 30 days’ written notice to terminate (Term). The notice shall not expire until the end of the service interval that is on or next follows the expiration of the notice.
8.2 The Contract may be terminated immediately by:
8.2.1 either party if the other party commits a material breach of these Terms that it does not remedy within 30 days of a written notice requiring the same;
8.2.2 either party if one or more of the following applies to the other party: (a) it ceases to trade; (b) it is unable to pay its debts; or (c) it suffers an Insolvency Event; or
8.2.3 us if any outstanding amount payable by you under these Terms remains unpaid for a period of 3 days after us providing you with written notice.
8.3 On ending the Contract for any reason:
8.3.1 you shall immediately cease to make use of the Services and the Documentation;
8.3.2 you shall immediately pay any outstanding sums under these Terms. In respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice that shall be payable by you immediately on receipt;
8.3.3 you shall return or destroy all of our Confidential Information or any document containing part thereof, together with all copies of such Confidential Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken;
8.3.4 you shall return and make no further use of any equipment, property, Documentation and other items to us; and
8.3.5 we may destroy or otherwise dispose of any Customer User Data in our possession unless we receive, no later than 30 days after the date of termination of the Contract, a written request for the delivery to you of the then most recent back-up of the Customer User Data. We shall use reasonable endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer User Data.
8.4 Termination of the Contract shall be without prejudice to any rights and remedies of the parties that have occurred up to the date the Contract ends.
8.5 Those parts of these Terms explicitly or implicitly intended to come into or remain in force on the ending of the Contract shall continue in full force and effect.
9. Data protection
9.1 For the purposes of this clause 9, the terms “controller”, “personal data”, “personal data breach”, “process”, “processing” and “processor” shall have the meanings given to them in GDPR;
9.2 The parties acknowledge and agree that for the purposes of the Data Protection Laws, you are the controller and we are the processor of the Customer Personal Data. Schedule 1 to these Terms sets out the subject matter, nature and purpose of processing by us, the duration of the processing, the types of personal data, categories of data subject and your obligations and rights as controller.
9.3 Each party shall comply with the applicable requirements of the Data Protection Laws. This clause 9 is in addition to and does not replace a party’s obligations under the Data Protection Laws.
Provision of the Services and Processing Personal Data
9.4 We shall:
9.4.1 process Customer Personal Data only on your written instructions and only to the extent required to provide the Services. If we are required by any applicable laws to process Customer Personal Data we shall, to the extent legally permitted, notify you before doing so;
9.4.2 have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, accidental loss or destruction of or damage to Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected. We shall implement such measures to ensure a level of security appropriate to the risk involved, including if as appropriate: (i) the pseudonymisation and encryption of Customer Personal Data; (ii) the ability to ensure the ongoing confidentiality, integrity, available and resilience of processing systems and services; (iii) the ability to restore the availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectives of security measures ;
9.4.3 not engage another processor without prior specific or general written authorisation from the Customer and without ensuring that the same data protection obligations as set out in this clause 9 are imposed in a written contract on that other processor and we shall remain fully liable to you for performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations. For the purposes of this clause 9.4.3, you consents to the transfer of Customer Personal Data by us to various marketing, CRM and email platforms to the extent necessary in order for us to provide you with the Services;
9.4.4 ensure that persons who have access to or process Customer Personal Data keep it confidential (either under contractual or statutory obligations);
9.4.5 ensure that any transfer of Customer Personal Data outside of the European Economic Area (“EEA”) takes place only on your documented instructions. Where you gives consent, we shall only process, or permit the processing of Personal Data outside the EEA on the following conditions: (i) the Customer Personal Data is being processed in a territory which is subject to a current finding by the European Commission under the Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals; or (ii) we participate in a valid cross-border transfer mechanism under the Data Protection Laws so that we can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of GDPR; or (iii) the transfer otherwise complies with the Data Protection Laws;
9.4.6 take such technical and organisational measures as may be reasonably appropriate to assist you to respond to any request from a Data Subject;
9.4.7 notify you without undue delay if you receives a request from a Data Subject to exercise any of their rights under the Data Protection Laws;
9.4.8 notify you without undue delay if we becomes aware of any accidental, unauthorised or unlawful processing of the Customer Personal Data or a personal data breach including the following information: (i) description of the nature of the accidental, unauthorised or unlawful processing and/or personal data breach; (ii) the likely consequences; and (iii) a description of the measures taken or proposed to be taken to address the accidental, unauthorised or unlawful processing and/or personal data breach together with measures to mitigate possible adverse effects;
9.4.9 not inform any third party of any personal data breach without first obtaining your prior written consent, except when required to do so by law;
9.4.10 taking into account the nature of our processing and the information available to us, provide reasonable assistance to you complying with our obligations pursuant to Articles 32 to 36 of GDPR including in relation to data subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Laws;
9.4.11 at your written direction, delete or return Customer Personal Data to you on termination of the Services unless we are required by law to store the Customer Personal Data;
9.4.12 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by you or your designated auditor, provided that you shall provide reasonable notice of any audit it wishes to carry out. You shall carry out no more than one audit per year, unless you believe (acting reasonably and in good faith) that we have breached the Data Protection Laws in which case you shall be entitled to carry out further audits; and
9.4.13 immediately inform you if, in our opinion, an instruction from you infringes the Data Protection Laws and shall promptly notify you of any changes to Data Protection Laws that may adversely affect our provision of the Services.
9.5 If any transfer of personal data between us and you require execution of SCCs in order to comply with the Data Protection Legislation, the parties will complete all relevant details in, and execute, the SCCs and take all other actions required to legitimise the transfer.
Customer Data Protection Obligations
9.6 You shall ensure that all Data Subjects have provided consent to the Customer Personal Data being collected and processed by us in accordance with the Data Protection Laws, or that there is a suitable alternative ground for us processing the Customer Personal Data in accordance with Data Protection Laws.
9.11 You shall indemnify, keep indemnified and defend us at your own expense against all costs, claims, damages or expenses incurred by us or for which we may become liable due to:
9.11.1 any failure by you or your employees, subcontractors or agents to comply with any of its obligations under clauses 9.6 to 9.10 or the Data Protection Laws; or
9.11.2 us complying with any instructions given by you that do not comply with the Data Protection Laws.
9.12 You shall not be entitled to claim back from us any sums paid in compensation by you in respect of any damage to the extent that you are liable to indemnify us under clause 9.11.
10. Liability and indemnity
10.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that is not permitted to be limited or excluded by law.
10.2 Subject to clause 10.1, we will not be liable to you, whether in contract, tort (including negligence or breach or statutory duty), misrepresentation, restitution or otherwise for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information (it being acknowledged by you that you will not use the Services to maintain your primary copy of the Customer User Data); (f) loss of or damage to goodwill; and (g) any indirect or consequential loss.
10.3 Subject to clause 10.1 and clause 10.2, and if clause 10.4 does not apply, our total liability to you whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising because of or in connection with the Contract shall in all circumstances be limited to a sum equal to the total Charges paid by you under the Contract in the Year in which the liability arose.
10.4 Subject to clause 10.1 and clause 10.2 and notwithstanding clause 10.3, if at the time the liability arose you were subscribed to a free trial of the Software, our total liability to you whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising because of or in connection with the Contract shall in all circumstances be limited to £500.
10.5 Except as expressly and specifically provided in these Terms:
10.5.1 you assume sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your discretion;
10.5.2 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;
10.5.3 all dates supplied by us for the delivery of the Services shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates; and
10.5.4 the Services are provided to you on an “as is” basis.
10.6 You will indemnify us in full from and against all liabilities, losses, costs and expenses that we incur as a result of a claim, or may incur in the defence of a claim, made by one or more of your customers in respect of the Services.
11.1 We each undertake that we will not at any time during the Term, and for a period of five years after termination of the Contract, disclose to any person any Confidential Information.
11.2 Notwithstanding clause 11.1, we may disclose your Confidential Information:
11.2.1 to any relevant third party to the extent reasonably required by such third party in order to allow us to fulfil our obligations under these Terms; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.1 Force Majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under these Terms arising from any event beyond its reasonable control, provided that it notifies the other party of the circumstances and the extent of any resulting delay or prevention and resumes performance of its obligations as soon as reasonably possible following its end.
12.2 Notices. Any notice or other communication given by one of us to the other under or in connection with these Terms must be in writing and be delivered by email to firstname.lastname@example.org delivered personally, sent by pre-paid first-class post or other next working day delivery service. A notice or other communication is deemed to have been received:
12.2.1 if sent by email, at the time of transmission;
12.2.2 if delivered personally, on signature of a delivery receipt; or
12.2.3 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting.
12.3 Anti-Bribery and Modern Slavery. Each party shall comply with the Bribery Act 2010 and the Modern Slavery Act 2015 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010 or the Modern Slavery Act 2015.
12.4 Assignment and Sub-Contracting. You may not assign, delegate, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under these Terms without our prior written consent.
12.5 Further Assurance. At any time, each party shall sign all documents and do or cause to be done all further acts and things as that party so requiring may reasonably require to give full effect to these Terms.
12.6 Entire Agreement. These Terms (and the documents referred to within them) contain all the terms which the parties have agreed with respect to its subject matter and supersede all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to accept these Terms by a statement or promise which it does not contain, or is not contained in a document referenced within it. All warranties, conditions and other terms (whether express or implied) that are not set out in these Terms are (to the fullest extent permitted by law) excluded from these Terms.
12.7 Third Party Rights. These Terms are between you and us. No other person has any rights to enforce any of these Terms.
12.8 Variation. No variation of these Terms shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
12.9 Waiver. Failure to exercise (or to fully exercise), or any delay in exercising, any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy under these Terms or by law.
12.10 Severability. If any provision of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from these Terms in so far as these Terms relates to that jurisdiction and the validity and enforceability of that provision in other jurisdictions and the other provisions of these Terms shall not be affected or impaired.
12.11 Governing Law and Jurisdiction. These Terms shall be governed by English law. The parties agree to submit to the exclusive jurisdiction of the English courts.
Schedule 1 – Processing, personal data and data subjects
1. Subject matter of processing
1.1 The provision of the Services by us to you.
2. Duration of processing
2.1 The duration of the provision of the Services to you in accordance with the Terms.
3. Nature of processing
3.1 We will process your data to the extent required to enable us to provide the Services to you.
4. Purpose of processing
4.1 To enable:
4.1.1 us to provide the Services; and
4.1.2 you to download any output of the Services.
5. Types of personal data
5.1 The following types of personal data will be processed:
5.1.1 IP addresses;
5.1.2 browsing history on your website, including pages viewed, scroll limits and dwell time;
5.1.3 to the extent identified by purchasers of products on your website, the names and contact details, including email addresses, addresses and telephone numbers of data subjects;
5.1.4 dates of birth of data subjects; and
5.1.5 any other personal data you lawfully upload to the Services.
6. Categories of data subject
6.1 Categories of data subject include:
6.1.1 Authorised Users;
6.1.2 Your customers or prospective customers; and
6.1.3 any user of the Services.
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