Terms of service agreement

Interpretation

In this Agreement, unless the contrary intention appears:
"Additional Functionality" means any additional functionality / services the Customer orders from the Company as set out in an Order Form;

"Agreement" is defined in paragraph (G) of the "Background";

"Authorised Users" means those individual employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software and the Services as Authorised Users, subject to any Licence Restrictions;

"Company" is defined in paragraph (B) of the "Background";

"Company Content" means all data, information and material owned by or licensed to the Company and comprised within any Software and/or the Services, but excluding Customer Data;

"Confidential Information" means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other's business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential;

"Customer" is defined in paragraph (B) of the "Background";

"Customer Data" means all information, data or other materials inputted into or processed using the Services and/or Software by the Customer, its Authorised Users or otherwise on its behalf;

"Effective Date"is defined in paragraph (C) of the "Background";

"Fees" means the fees for the Services as specified in an Order Form, subject to clause 13.4;

"Free Trial" and "Free Trial Period" are each defined in clause 3;

"Functionality" means the description and functionality of the Software and the Software Services as set out on the Website and/or Order Form (In the event of any conflict, inconsistency or ambiguity between those materials, the following order of precedence applies: (1) Order Form; and then (2) Website);

"Intellectual Property Rights" means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

"Licence Restrictions" means the restrictions applicable to the level or type of licence provided as are applicable to the Software and/or as otherwise set out in the Order Form (if any);

"Order Form" means the Company's online order page(s) on the Website, in the Software or as otherwise agreed between the parties describing the Services (and related Fees) the Customer has placed or is placing with the Company and any additional related terms;

"Services" means all services to be supplied by the Company under this Agreement, as agreed via the Order Form process, including the Software Services, the Technical Support Services and Additional Services (as applicable);

"Software" means the online software applications provided via the Services to meet the Functionality and Additional Functionality (of any);

"Software Services" means the services provided by the Company allowing the Customer to access and use the Software as further described in the Functionality in accordance with the Licence Restrictions and, where selected and paid for by the Customer via the Order Form process, includes the Additional Functionality;

"Subscription Term" means each subscription cycle period, as selected by the Customer in the Order Form process, for the provision of Services (e.g., one month of a monthly subscription);

"Technical Support Services" means the services to be supplied by the Company as specified on the Website (for clarity, only limited Technical Support Services are provided to non-paying Customers, based on the availability of the Company's staff);

"Term" means the Free Trial Period (if applicable) and each Subscription Term;

"Virus" means any "back door", "Trojan Horse", "time bomb", "worm", "drop dead device", "virus" or other software intended or designed, or having the effect, to disable, erase, corrupt, destroy or otherwise damage or interfere with, or provided unauthorised access to, computer systems or any software stored on those computer systems;

"Website" means the Company's website at https://qatalog.com/; and

"Working Day" means any day other than a Saturday, a Sunday or a day which is a public or bank holiday in England and Wales.
In this Agreement, unless the context otherwise requires: (a) words in the singular include the plural and vice versa; (b) a reference to a person shall include a company, partnership, joint venture, association, corporation or other body corporate; (c) a reference to any law or standard shall include a reference to that law or standard as amended, extended, consolidated or re-enacted from time to time; (d) a reference to a document shall include all authorised amendments, supplements to and replacements to that document; (e) a reference to the parties shall include their permitted successors and assigns; (f) where a word or a phrase is given a particular meaning, other grammatical forms of that word or phrase shall have corresponding meanings; and (g) the words 'include', 'including', 'for example' or similar words shall be construed as illustrative and without limitation to the generality of the related words.

License

Subject to the receipt of the Fees (save in the case of a Free Trial or if expressly agreed otherwise in an Order Form), the Company, on and subject to the terms and conditions of this Agreement, grants to the Customer a non-exclusive, non-transferable licence for the Term to access and use the Software and Software Services, in accordance with the Licence Restrictions, and to allow the permitted number of Authorised Users to access and use the Software and Software Services, solely for the Customer's internal business purposes, provided that:
1. in each of these cases, the person concerned is accessing and using the Software and Software Services exclusively on the Customer's behalf and for the above purpose; and
2. other in eacthan as set out in this clause 2.1, the Customer may not sub-license the right to access and/or use any Software or Software Services to any third party.
The Customer shall comply with, and shall ensure that each Authorised User consents to and complies with, this Agreement, any separate terms of use or service (including any acceptable use policy) and privacy and/or cookies policy that the Company may publish online on its Website and/or through the Software and Software Services, each as updated by the Company from time to time, all of which are incorporated into this Agreement by reference.
The parties acknowledge and agree that:
1. the Customer may integrate certain third party services and applications with the Software and Services; and
2. it the Customer's sole responsibility to ensure it has all necessary licences, consents, and permissions to enable the Customer to integrate those third party services and applications with the Software and Services and to extract data processed on such services and applications for processing within the Software and Services. THE COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER REGARDING SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.

Free Trials

The Customer may request a free of charge free trial to evaluate the Software, which shall last for three months from the date the Company confirms the Free Trial has commenced, or any other period expressly agreed in the Order Form ("Free Trial Period") and which shall be governed by this Agreement ("Free Trial").
During the Free Trial Period, the Customer may make such use of the Software and Software Services in accordance with this Agreement (in particular, the licence in clause 2) to the extent reasonably required in order to evaluate it for future use in its business but not for any other purpose.
The Company reserves the right to suspend, limit or extend a Free Trial at any time in its sole discretion.
The Customer's subscription will automatically renew on a monthly Subscription Term basis on the same terms unless either party cancels the Customer's subscription prior to expiration of the Free Trial Period.
One Free Trial per Customer is allowed and subsequent Free Trial requests may be rejected by the Company.

Company's obligations

Subject to receipt of the related Fees (save in the case of a Free Trial or if expressly agreed otherwise in an Order Form), the Company shall during the Term:
1. provide the Customer with a URL or link from which the Customer and its Authorised Users can access the Software; and
2. provide the Customer with the Services.
The Company shall perform the Services with reasonable skill and care and will comply with applicable laws and regulations with respect to its activities under this Agreement.
The Customer acknowledges and agrees that the Company's provision of the Services shall be conditional upon:
1. the Customer's compliance with its obligations contained within this Agreement; and
2. the Customer promptly providing all reasonable assistance, information and decision-making as reasonably required by the Company from time to time, which it agrees to give.
In any event, the Company:
1. does not warrant that the Customer's use of the Software or Services will be uninterrupted or error-free;
2. 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 Software and Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
3. makes no warranties or other assurances as to the fitness for purpose of the Software or Services or any Company Content or that they will meet the Customer's requirements or produce any specific business benefits, have any particular effectiveness nor create any revenue or other benefits.
All other conditions, warranties or terms which might have effect between the parties or be implied or incorporated into this Agreement by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.

Customer's obligations

The Customer shall:
1. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner (other than making payment which shall be as required in accordance with the terms of the Agreement);
2. accept responsibility for the selection of the Software and Services to achieve its intended results;
3. comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Software and Services; and
4. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this Agreement, including the Services.
In relation to the Authorised Users the Customer shall:
1. designate Authorised Users as a fixed number of individually identified and named users, not as a pool of concurrent users, and ensure that accounts are not shared between multiple users or transferred to other users without express permission. The list of individually identified and named users will be made available to the Company on request;
2. where applicable, ensure that each Authorised User keeps a secure password for their use of the Software and the Services, that such password is kept confidential;
3. be responsible for all activities that occur under the Customer's account and for any access to or use of the Software and Services, including submission of Customer Data by any person or entity using the account or any password whether or not such access, submission or use has been authorised by the Customer;
4. if it believes that there has been any breach of security such as the disclosure, theft or unauthorised use of any username or password, notify the Company immediately; and
5. ensure that the Authorised Users are notified of the relevant terms and conditions relating to their usage and access of the Software and Services, and in any event that they use the Software and Services in accordance with this Agreement, and the Customer is responsible for any Authorised User's breach of this Agreement, including any Licence Restrictions.
The Customer shall not:
1. except as expressly permitted by this Agreement, permit any third party to access or use the Software or the Services or use the same on behalf of any third party;
2. attempt to download, copy, modify, create derivative works from, frame, mirror, republish or distribute any portion of the Software or the Services;
3. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Services;
4. employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use any Software or Services (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorised use contained in this Agreement;
5. obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, any Software or Services;
6. provide false identity information to gain access to or use the Software or Services;
7. access or use the Software or Services or any related documentation or know how in order to build or assist in the design or build of a product or service which competes with the Software and/or Services;
8. use the Software or Services to provide services to third parties, unless otherwise specifically agreed in writing; and/or
9. use the Software or the Services to:
  1. upload, store, post, transmit, distribute, link to or otherwise make available, or advertise or promote any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety, alarm or embarrassment, knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Service, as updated by the Company from time to time;
  2. impersonate any person or entity or otherwise misrepresent the Customer's relationship with any person or entity;
  3. engage in any fraudulent activity or further any fraudulent purpose;
  4. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;
  5. "stalk" or otherwise harass another person or collect or store unauthorised personal data in relation to any individual;
  6. transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); and/or
  7. transmit or distribute any Virus and/or other code that has contaminating or destructive elements,
and shall not permit any Authorised User or other third party to do any of the foregoing.
The Customer shall ensure that it takes all necessary steps to prevent any unauthorised access to, or use of, the Software and the Services and notify the Company immediately of any such unauthorised access or use.
The Customer shall ensure that the Customer Data shall not, nor shall it otherwise use the Software of Services in a way that could, infringe the statutory, common law, or Intellectual Property Rights or any other right, title or interest of any third party.
The rights and services provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Company's brands, trademarks and logos, the Software and the Services and any Company Content. Except as expressly stated in this Agreement the Company does not grant the Customer any rights in respect of the Software, Services or any related documentation or Company Content and the Customer may not use any of the Company's Intellectual Property Rights without the Company's prior written consent.
The Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data. The Customer grants the Company, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data only to such extent as is necessary to enable the Company to provide the Software and the Services and to perform its obligations under this Agreement. The Customer warrants that the Customer owns the Customer Data and/or is otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.
The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

Billing, renewals and payment

All Services are offered on a monthly subscription basis, save in the case of a Free Trial or where expressly agreed otherwise in an Order Form.
Except where expressly agreed otherwise in an Order Form, the Customer's subscription will automatically renew for another Subscription Term of a period equal to the initial Subscription Term unless either party cancels the Customer's subscription prior to expiration of the then current Subscription Term in accordance with this Agreement.
The Customer may provide a notice of non-renewal through the means the Company designates, which may include account settings in the Software or by contacting the Company's support team.
Cancelling the subscription means the Customer will not be charged for the next Subscription Term billing cycle, but the Customer will not receive any refunds or credits for amounts that have already been charged.
All renewals are subject to the applicable Services continuing to be offered and will be charged at the Company's then-current rates.
The Customer may make changes to its Order Form (e.g., adding Additional Functionality or Authorised Users) by placing a new Order Form or modifying an existing Order Form. If the Customer is modifying an existing Order Form mid cycle, the Company may apply a one-time pro-rata charge in respect of the remainder of the current billing cycle.
Except where expressly agreed otherwise in an Order Form, the Company will charge the Customer for any increased use at the then-current rates, pro-rated for the remainder of the then-current Subscription Term.
Except where expressly agreed otherwise in an Order Form, the Company will collect all Fees due from the Customer's debit/credit card nominated upon registration unless notified that the payment details have changed (and new valid debit/credit card details have been provided to the Company along with the appropriate authority). The Company may suspend or cancel the Software and Services (or part thereof) if the Customer is late in paying or does not pay any sums due (including in the debit/credit card provided is not valid or does not work for any reason).
All sums payable under this Agreement are exclusive of VAT or other applicable sales tax which will be payable by the Customer in addition to the sum in question at the rate and in the manner prevailing at the relevant tax point and in the manner prescribed by law.
If, acting reasonably, the Customer is not happy with the Software or Services, the Customer may request that it is not billed for any accrued charges in its then current cycle. In these circumstances, please contact Qatalog at [email protected] so we can figure out how best to help you.

Indemnities

The Company will indemnify the Customer from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Customer as a result of any claim by a third party that the access and use of the Software or Services in accordance with this Agreement infringes the intellectual property rights of that third party.
If the Customer's access or use, in accordance with the terms of this Agreement, of the Software and/or the Services is, or in the Company's reasonable opinion is likely to become, enjoined as a result of a claim for which the Company is obliged to indemnify the Customer further to clause 8.1, then the Company shall, at its sole option, and at its own cost and expense, make reasonable efforts, as soon as reasonably possible to:
1. procure for the Customer the continuing right to access and use such Software and/or the Services (as the case may be), in accordance with this Agreement, without infringement; or
2. replace or modify such Software and/or the Services (as the case may be) with software and/or services of substantially equivalent specification so as to avoid the infringement,
and provided the Company does so, it shall have no further liability to the Customer in respect of the infringement claim. If the Company is unable to do the above, the Company may terminate this Agreement and refund pro rata to the Customer such part of any sums paid by the Customer, which relate to the unexpired portion of the Agreement.
The indemnity in clause 8.1 does not apply to any infringement or allegation of infringement occasioned by use of the Software or Services contrary to the Company's instructions, or modification or alteration of the Software or Services by any party other than the Company or the Company's duly authorised contractors or agents, or combination or integration of the Software or Services with any third party systems or services, or other Customer breach of the Agreement.
The Customer will indemnify the Company from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Company as a result of or in connection with:
1. a breach of clause 2.3;
2. any Customer Data or the Company's receipt, possession and/or use, in accordance with this Agreement, of any Customer Data;
3. a breach of the Data Protection Schedule; and/or
4. any claim by a third party arising as a result of the Customer's use of the Software and/or the Services.
If any third party makes a claim, or notifies an intention to make a claim, against the indemnified party which may reasonably be considered likely to give rise to a liability under the indemnities given in clauses 8.1 or 8.4 (a " Claim "), the indemnified party agrees to:
1. promptly notify the indemnifying party of any allegation of infringement which comes to its attention;
2. make no admission relating to the Claim without the prior written consent of the indemnifying party (such consent not to be unreasonably conditioned, withheld or delayed); and
3. allow the indemnifying party to conduct and settle all negotiations and proceedings and give the indemnifying party all reasonable assistance.

Confidentiality

Neither party shall without the consent of the other during the Term or following its termination disclose the other party's Confidential Information and only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement.
Any party disclosing Confidential Information in accordance with the above clause shall procure that the person to whom such information is disclosed is made aware of the obligations of confidentiality under this Agreement and complies with those obligations as if it were a party to this Agreement.
The confidentiality restrictions do not apply to Confidential Information:
1. which is in or comes into the public domain other than through breach of this Agreement;
2. insofar as it comes lawfully into the possession of the recipient party from a third party;
3. which the recipient party can prove was already known to it before its receipt from the providing party;
4. to the extent that it is required to be disclosed by law or the requirements of any recognised stock exchange, or authority of competent jurisdiction to whose rules the party making the disclosure is subject, whether or not having the force of law.
The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
The Customer acknowledges that details of this Agreement, Fees, Software and the Services, and the Company Content, are the Confidential Information of the Company.

Limitation of Liability

Nothing in this Agreement shall in any way exclude or limit either party's liability: (a) death or personal injury caused by either party's negligence or for fraudulent misrepresentation; (b) for any other fraudulent act or omission; (c) to pay sums properly due and owing to the other in the normal course of performance of this Agreement; (d) each party's express indemnification obligations in clause 8; or (e) for any other liability which may not be excluded by law.
Subject to clause 10.1, neither party will be liable for any of the following losses or damage (whether or not such losses or damage were foreseen, direct, foreseeable, known or otherwise) howsoever arising:
1. loss of revenue, sales, turnover, revenue or business, customers, contracts or opportunity, waste of management or other staff time, actual or anticipated profits, anticipated savings, business, opportunity, goodwill, reputation, hardware, software or data or damage to or corruption of data; or
2. any, indirect, special or consequential loss or damage howsoever caused whether or not such loss is covered in clause 10.2(a);
3. any losses arising as a result of any third party bringing a claim in respect of any of the types of loss in clause 10.2(a).
Subject to clause 10.1, the Company shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:
1. the use of the Software and/or the Services except for its normal intended purpose;
2. any adaptation or modification of the Software and/or the Services, or integration or combination with any other equipment, software, product or material not supplied by the Company, in each case carried out by anyone other than the Company or without the Company's express written consent;
3. any defect arising in the Software and/or the Services as a result of misuse, wilful damage, negligence on the part of anyone other than the Company, abnormal operating conditions or any failure by the Customer to follow any instructions of the Company as to use;
4. the compliance by the Company with any design, specification or instructions provided by the Customer or on the Customer's behalf;
5. loss of any Customer Data; or
6. the continued use of a version or release of the Software and/or the Services after the Company has made an alternative version or release of such Software and/or the Services available to the Customer, to the extent that any claim in respect of which the Company would otherwise be obliged, under this Agreement, to indemnify would have been avoided by the use of such alternative version or release.
Subject to clauses 10.1, 10.2 and 10.3 each party's total aggregate liability arising out of, or in connection with this Agreement for negligence or breach of contract or any other reason shall in no event exceed the annual Fees received by the Company for the Services provided to the Customer.

Term and Termination

This Agreement shall, unless otherwise terminated as provided herein or in the Order Form, commence on the Effective Date and shall continue for the Term.
The Customer may choose to stop using the Services (or part thereof) and terminate the then-current Subscription Term at any time for any reason and terminate this Agreement upon written notice to the Company.
Either party ("Terminating Party") may terminate this Agreement immediately by giving written notice to the other (" Defaulting Party") if:
1. the Defaulting Party is in material breach of any provision of this Agreement which is not remediable or, if remediable, is not remedied with a period of 20 Working Days after the Terminating Party has given notice to the Defaulting Party requiring such breach to be remedied; and/or
2. the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
Without prejudice to clause 11.1, the Company may, in addition, and without liability, terminate this Agreement, or alternatively, may suspend access to and use of any Software and/or the Services, by giving the Customer written notice if:
1. any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
2. any provision of clause 5 is materially breached; and/or
3. the Customer is in persistent or repeated breach of any of its obligations under this Agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
On termination of this Agreement for any reason:
1. all licences granted under shall immediately terminate;
2. the Customer shall return and make no further use of any Software, the Services, documentation, Confidential Information of the Company and other items (and all copies of them) (if any) belonging to the Company. The Customer will certify such deletion upon the Company's request. The Customer will not have access to Customer Data (and the Company may delete all of the Customer Data unless legally prohibited) after expiration or termination of this Agreement (or its applicable Term), so the Customer should make sure to export the Customer Data using the functionality provided on the Software during the applicable Term; and
3. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
In the event that:
1. the Customer terminates this Agreement under clause 11.2, all amounts payable to the Company by the Customer shall become immediately due and owing. For the avoidance of doubt, no refund of Fees paid in advance shall be due in respect of any unexpired portion of the then-current Subscription Term;
2. the Customer terminates this Agreement under clause 11.3, the Company will refund the Customer any prepaid Fees covering the remainder of the then-current Subscription Term after the effective date of termination; and
3. the Company terminates this Agreement under clause 11.3 or 11.4, the Customer will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination,
provided that in no event will termination relieve the Customer of its obligation to pay any fees payable to the Company for the period prior to the effective date of termination.

Force Majeure

Neither party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party including, without limitation, any of the following: power failure, act of God, governmental act, war, fire, flood, explosion, civil commotion, epidemic, pandemic or any other similar event. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If an event of force majeure occurs and lasts for more than 90 days either party may give written notice to the other to terminate this Agreement and neither party will have any liability to the other except that the Customer will remain liable for any unpaid fees.

Changes to this Agreement, the Services and the Fees

The Company may modify this Agreement from time to time, with notice to you in accordance with clause 14.9, or by positing the modified Agreement on the Website. Together with notice, the Company will specify the effective date of the modifications.
During a Free Trial Period, the Customer must accept the modifications to continue using the Services. If the Customer objects to the modifications, the exclusive remedy is to cease using the Services.
During a Subscription Term or as indicated below, modifications to this Agreement will take effect at the next renewal of the Subscription Term and will automatically apply as of the renewal date unless the Customer elects not to renew pursuant to clause 7. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws or as necessary for new features) the Customer may specify that such modifications become effective during the Customer's then-current Subscription Term. If the effective date of such modifications is during the Customer's then-current Subscription Term and the Customer objects to the modifications, then (as the Customer's exclusive remedy) the Customer may terminate the affected Services upon notice to the Company, and the Company will refund the Customer any Fees pre-paid for use of the affected Service for the terminated portion of the applicable Subscription Term. To exercise this right, the Customer must provide the Company with notice of its objection and termination within thirty (30) days of the Company providing notice of the modifications. For clarity, any Order Form is subject to the version of this Agreement in effect at the time of the Order Form.
The Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience the Customer may make changes to the Services and/or Fees. Subject to the Company's obligation to provide additional services agreed under existing Order Forms, the Company can discontinue any Services or art thereof for any reason at any time without liability to the Customer.

General

Each party shall comply with the terms set out in the Data Processing Schedule.
The failure or delay by either party in any one or more instances to insist upon strict performance or observance of any one or more of the terms of this Agreement or to exercise any remedy, privilege or right provided by law or under this Agreement shall not be construed as a waiver of any breach or right to enforcement of such terms or to exercise such remedy, privilege or right.
If any part of this Agreement is found by any court or competent authority to be illegal, void or unenforceable then that part shall be deemed not to be a part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.
The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Any variations to this Agreement (including an Order Form) must be in writing and signed by the authorised representatives of each party.
Nothing in this Agreement shall be deemed to constitute a partnership or joint venture or contract of employment between the parties nor constitute either party the agent of the other.
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Neither party shall make or issue any announcement relating to the subject matter of this Agreement without the prior written approval of the other. The Company may use the name of Customer as a factual reference to the fact that the Customer is or was a customer, on its website and in pitch materials, without the prior written consent of Customer, although any use of the Customer's logo shall be subject to any brand guidelines issued by the Customer.
Except as set out in clause 13 , each notice or other communication to be given under this Agreement shall be given in writing in English and, unless otherwise provided, shall be made in writing by authorised representatives of each party.
Notice delivered by hand will be deemed to have been received when delivered. Posted notice will be deemed received at the time at which it would have been delivered in the normal course of the post. Any notice given in accordance with the above but received on a day which is not a business day or after normal business hours in the place of receipt shall be deemed to have been received on the next Working Day.
It is a condition of this Agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this Agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
This Agreement, and any documents explicitly referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
This Agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but the Company is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.

Definitions and interpretation

In this Data Processing Schedule and related Annex the following definitions apply:
"Adequate Country" means a country or territory outside the United Kingdom ("UK") or European Economic Area and Switzerland ("EEA") recognised as providing adequate protection for personal data transfers under an adequacy decision made from time to time by the European Commission under the GDPR;

"Data Protection Annex" or "Annex" means the annex attached to the end of this Data Processing Schedule (i.e., sections 5 to 10);

"Data Protection Laws" means all applicable data protection or privacy laws applicable to any personal data processed under or in connection with this Agreement, including without limitation the General Data Protection Regulation 2016/679 ("GDPR"), the Privacy and Electronic Communications Directive 2002/58/EC ("PECR") and all applicable national legislation implementing or supplementing the foregoing, including the Data Protection Act 2018 and all associated codes of practice and other binding guidance issued by any supervisory authority all as amended, superseded and/or replaced and in force from time to time;

"Model Clauses" means the model clauses for the transfer of personal data to processors established in third countries approved by the European Commission, the approved version of which is set out in the European Commission's Decision 2010/87/EU of 5 February 2010 and at http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D008 (as may be amended, superseded and/or replaced and in force from time to time);

"Personal Data" means all means all data which is defined as 'personal data' under Data Protection Laws and which is provided by Customer to Company (directly or indirectly), and accessed, stored or otherwise processed by Company as a data processor as part of its provision of the Services to Customer and to which Data Protection Laws apply from time to time; and

"Privacy Shield" means the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (as may be amended, superseded and/or replaced and in force from time to time) and which are available from the US Department of Commerce at https://www.privacyshield.gov/EU-US-Framework.
For the purposes of this Data Processing Schedule and related Annex , the terms "controller", "data subject", "processor", "personal data", "personal data breach" and "supervisory authority" shall have the meanings set out in the Data Protection Laws.

Data Protection

Each party shall comply with:
1. its obligations under applicable Data Protection Laws at all times during the Term;
2. to the extent applicable under the Data Protection Laws, obtain and maintain all appropriate registrations, required in order to allow that party to perform its obligations under this Agreement; and
3. maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws and shall make such information available to any supervisory authority on request.

Data processors

Where the Company is deemed to be acting as a processor for the Customer with respect to Personal Data under applicable Data Protection Laws, the Data Processing Annex (at the end of this Data Processing Schedule)shall apply to such processing. For clarity, the Data Processing Annex does not apply if the Company is not deemed to be acting as a processor for the Customer with respect to Personal Data under applicable Data Protection Laws.
The Customer confirms to the Company that in connection with Personal Data, it has provided all relevant information and, where applicable, has obtained the relevant consents from its employees, agents and consultants to allow Company to process their Personal Data.
The Customer acknowledges and agrees that:
1. the Customer may have relationships with third parties, including other processors of the Customer, joint controllers, and/or controllers;
2. the Company's provision of the Services to the Customer may include collecting personal data from, transferring personal data to, and otherwise processing personal data in relation to such third parties; and
3. any such third parties are not sub-processors of Company.

Data controllers

Where a party is deemed to be acting as a controller with respect to personal data processed under or in relation to this Agreement, under applicable Data Protection Laws, this section 4 shall apply, and each party shall, in its capacity as a controller:
1. provide assistance to allow the other party to comply with any data subject requests (whether in relation to access to personal data, rectification, restrictions on processing, erasure or portability) insofar as possible;
2. provide assistance to allow the other party to comply with any other queries or complaints from a supervisory authority insofar as possible;
3. promptly notify the other party of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed pursuant to this Agreement (" Security Incident");
4. provide reasonably necessary assistance to enable the other party to notify insofar as possible: (i) the relevant supervisory authority, promptly and in any event no later than 72 hours after relevant data controller becomes aware of a Security Incident; and (ii) the relevant data subjects without undue delay (where required) of a Security Incident.

Company acting as Processor

Where the Company is deemed to be acting as a processor for the Customer with respect to Personal Data under applicable Data Protection Laws, this Data Processing Annex shall apply to such processing (and for clarity, does not apply if the Company is not deemed to be acting as a processor).

Description of Processing

The type of Personal Data processed pursuant to this Agreement and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are as described below:
1. Subject Matter of the Processing: the Company's provision of the Services and Software to the Customer.
2. Nature and Purpose of the Processing: the collection, analysis, storage, duplication, deletion and disclosure as necessary to provide the Company Services and as may be further instructed by Customer in writing.
3. Duration of Processing: the Company will process the Personal Data for the duration of this Agreement, or until the data upon which processing is no longer necessary for the purposes of either party performing its obligations under this Agreement (to the extent applicable) unless otherwise agreed between the parties in writing.
4. Types of Data: data relating to individuals provided to the Company via the Services and Software, by (or at the direction of) the Customer, including name, title, position, email address, employer and any other personal data processed in applications or other software which is integrated into the Software or otherwise accessed or processed via the Software Services or in relation to the Services.
5. Categories of data subjects: data subjects may include the Customer's clients, employees/staff, suppliers and Authorised Users about whom data is provided to the Company via the Services by (or at the direction of) the Customer.

Company obligations

The Company shall comply with the provisions and obligations imposed on it by the Data Protection Laws at all times when processing Personal Data.
In relation to all Personal Data, the Company acknowledges that, as between the parties, the Customer is the controller of such data, and that the Company, in providing the Services, is acting as a processor and shall:
1. process such Personal Data only in accordance with the written instructions of the Customer from time to time (including those set out in this Agreement), unless it is otherwise required by applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, the Company shall notify the Customer of the relevant legal requirement before processing the Personal Data);
2. take reasonable steps to ensure the reliability of all its personnel who have access to such Personal Data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing such Personal Data;
3. implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure, dissemination or access;
4. inform the Customer within 24 hours if any such Personal Data is (while within the Company's or its subcontractors' possession or control) subject to a personal data breach;
5. not disclose any Personal Data to any data subject or to a third party other than at the written request of the Customer or as expressly provided for in this Agreement;
6. at the written request of the Customer, delete or return the Personal Data and copies thereof to the Customer upon termination of this Agreement unless required by law to continue to store a copy of the Personal Data;
7. provide such information and assistance as the Customer reasonably requests (taking into account the nature of processing and the information available to Company) to the Customer in relation to the Customer's obligations under Data Protection Laws with respect to:
  1. data protection impact assessments (as such term is defined in the GDPR);
  2. notifications to the supervisory authority under Data Protection Laws and/or communications to data subjects by the Customer in response to any personal data breach; and
  3. the Customer's compliance with its obligations under the GDPR with respect to the security of processing;
  provided the Customer shall pay the Company's reasonable administrative charges for providing such assistance;
8. take such steps as are reasonably required to assist the Customer in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR;
9. provide the Customer with its full co-operation and assistance in relation to any request made by a data subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data contained within Personal Data.

Sub-processing

The Customer grants a general authorisation the Company to appoint sub-processors, including third party data centre and cloud storage operators, outsourced support providers, workflow and productivity software providers and analytics services providers, to support the performance of the Services and in respect of the sub-processing activities set out in section 6.1 of this Schedule.
The Company shall maintain a list of sub-processors at the following URL: https://qatalog.com/privacypolicy and add the names of new and replacement sub-processors to the list prior to them becoming a sub-processor of any Personal Data, and the Company acknowledges it is responsible for checking such list for updates.
If the Customer has a reasonable objection to any new or replacement sub-processor, it shall notify the Company of such objections in writing and the parties will seek to resolve the matter in good faith. If the matter cannot be resolved, the Customer may terminate this Agreement only in relation to the Services to which the proposed new sub-processor(s)' processing of Personal Data relates or would relate by providing written notice to the Company having effect thirty (30) days after receipt by the Company.
If the Customer does not provide a timely objection within fourteen (14) days to any new or replacement sub-processor in accordance with this section 8, the Customer will be deemed to have consented to the sub-processor and waived its right to object.
The Customer shall ensure that any sub-processor it engages to provide an aspect of the Services on its behalf in connection with this Agreement does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on the Company in this Agreement.

Data transfers

The Customer acknowledges and accepts that the provision of the Services under this Agreement may require the processing of Personal Data by the Company and/or by the Company's sub-processors in countries outside the UK or EEA from time to time.
Without prejudice to section 10, the Customer shall only transfer personal data outside of the UK or EEA (except if in an Adequate Country), including to any sub-processor, where it has in advance of any such transfer taken steps to put in place a mechanism to achieve adequacy in respect of that processing is in place, such as:
1. the requirement for the third party to be certified under the Privacy Shield framework, or any other framework that may replace the Privacy Shield from time to time;
2. the requirement for the Company to execute or procure that the third party execute on behalf of the Model Clauses; or
3. the existence of any other specifically approved safeguard for data transfers and/or a European Commission finding of adequacy.
  
  If the Services are covered by more than one transfer mechanism, the transfer of Personal Data will be subject to a single mechanism in accordance with the priority identified above.

Audit and records

The Company shall make available to the Customer such information in the Company's possession or control as the Customer may reasonably request with a view to demonstrating the Company's compliance with the obligations of processors under Data Protection Laws in relation to its processing of Personal Data.
The Customer may exercise its right of audit under Data Protection Laws, through the Company providing:
1. an audit report not older than 18 months by a registered and independent external auditor demonstrating that the Company's technical and organisational measures are sufficient; and
2. additional information in the Company's possession or control to an EU supervisory authority when it requests or requires additional information in relation to the data processing activities carried out by the Company under this Agreement

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