Last updated: 30th May 2018
This value added partner agreement (“Agreement”) is entered into by and between ContactEngine Limited, a company incorporated and registered in England and Wales with company number 05651154 (“we”, “our”, “us” or “ContactEngine Limited”) and the Partner (“you”, “your” or “Partner”) set forth on the Statement of Work between you and us (“SoW”) to govern your right to use our software-as-a-service conversation engine (“ContactEngine”).
This Agreement, the Addendum, the SoW, the SLA, and our EUAA, shall be collectively referred to as the “Contract.”
Please read this Agreement carefully before you agree to the SoW. We may amend this Agreement from time to time as set out in Section 18.2.
You may contact us by emailing us at email@example.com. If you wish to give us formal notice of any matter related to this Contract, please see Section 26.
1.1 The definitions and rules of interpretation in this Section apply in this Agreement:
Addendum: the data processing addendum at the end of these Terms.
Authorized End Users: the employees, agents and contractors of Partner and/or a Client who are authorized by Partner or the Client (as appropriate) to use ContactEngine and the associated Documentation.
Business Day: means a day, other than Saturday, Sunday or public holiday in England when banks in London are open for business.
Client: the client(s) named in a SoW.
Communications System or Provider: any third-party organization or technology system through which ContactEngine conducts Conversations, including, but not limited to, SMS aggregators, telecommunication providers, mobile network operators (i.e., wireless service providers and carriers), Internet service providers, social networking platforms, Internet messaging systems or email providers.
Confidential Information: any and all technical or non-technical information related to the past, current, or proposed operations, products, technology, services and business of such party (the “Discloser”) disclosed or otherwise made available in any manner by such party to the other party (the “Recipient”), or to which the Recipient may gain access in the performance of the Contract, whether disclosed orally, visually or through any tangible medium. Confidential Information may include, without limitation, trade secrets and proprietary information, data, techniques, sketches, drawings, specifications, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs and software source documents, customer lists, business forecasts, sales, and marketing plans and any other similar information or data.
ContactEngine: the software-as-a-service Conversation engine provided by ContactEngine Limited.
Conversation: A Conversation is defined as one or more automated messages, managed via any Communications System or Provider, between ContactEngine and an individual person or organization in relation to a specific activity, event, proposal or point of information on a particular day.
Customer Data: the data which relates to Client’s customers inputted by you, the Authorized End User, or us on your or a Client’s behalf (either manually or via data-feed, API, web service or other automated method) for the purpose of using ContactEngine.
Documentation: any documentation referred to or linked to in a SoW which sets out additional information about ContactEngine or the user instructions for ContactEngine (if any).
Effective Date: the date the SoW is executed by the parties, or such later commencement date as is specified in the SoW.
EUAA: the end user access agreement that Authorized End Users must agree to in order to access and use ContactEngine, as may be updated from time to time by us.
Fees: the fees for using ContactEngine, as set out in the SoW. Unless otherwise specified, all Fees are in British pounds exclusive of applicable taxes.
Normal Business Hours: 9:00 a.m. to 5:00 p.m. local time based on the Partner’s place of business, each Business Day.
SLA: our Service Level Agreement, as may be notified to you and updated from time to time.
Transaction Taxes: sales and use taxes.
Virus: any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 Section, schedule and paragraph headings shall not affect the interpretation of the Contract. References to Sections are to the Sections of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that entity’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision. A reference to writing or written includes email.
2.1 The following order of precedence shall apply to this Contract and the documents referred to in it: (a) the Addendum; (b) the Sections in this Agreement; (c) each SoW, save where provisions of this Agreement are specifically disapplied or varied in the SoW, in which case such special conditions shall take precedence to this Agreement; and (d) the SLA.
2.2 Each SoW: (a) shall be entered into by you and us; (b) forms a separate contract between the signatories; and (c) shall incorporate this Agreement.
3.1 We appoint you as a non-exclusive partner to combine ContactEngine with your other products and services and to use ContactEngine to provide services to the Client.
3.2 You shall not represent yourself as an agent of ContactEngine Limited (or any of its affiliates) for any purpose, nor pledge our credit or give any condition or warranty or make any representation on our behalf or commit us to any contracts. Further, you shall not without our prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of ContactEngine which are inconsistent with those contained in the promotional material supplied by us or otherwise incur any liability on behalf of us howsoever arising.
3.3 Your appointment under this Section 3 only grants to you a licence to use ContactEngine to provide services to the Client(s), and does not transfer any right, title or interest to ContactEngine to you or your Client(s). Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this Section.
4.1 We shall provide ContactEngine and any associated Documentation to you on and subject to the terms of the Contract.
4.2 The terms of the SLA from time to time are incorporated into this Contract by reference and shall apply to ContactEngine, subject to Section 2.1.
4.3 We shall use commercially reasonable efforts to make ContactEngine available 24 hours a day, seven days a week, except for: (a) planned maintenance carried out during the maintenance window of 10:00 p.m. to 6:00 a.m. (UK time); and (b) unscheduled maintenance performed outside Normal Business Hours, provided that we have used commercially reasonable efforts to give you at least six (6) Normal Business Hours’ notice in advance.
4.4 Unless stated otherwise in a SoW, we will, as part of the use of ContactEngine and at no additional cost to you, provide you with support services for any issues notified to us at firstname.lastname@example.org during Normal Business Hours.
4.5 We may, from time to time, alter or improve ContactEngine, provided that such alteration does not materially affect the functionality of ContactEngine.
4.6 You shall use commercially reasonable efforts to provide us with reasonable prior notice of any anticipated material increase in the volume of Conversations to be actioned by ContactEngine. If, following your delivery of such notice, we notify you that the operation of ContactEngine will be impacted by such increased volume, the parties will cooperate in good faith to resolve the problem.
5. Use of ContactEngine
5.1 Subject to your compliance with the terms of the Contract (including payment of the Fees), we hereby grant to you a non-exclusive, non-transferable right to permit the Authorized End Users who have been notified of and accepted the terms of the EUAA to use ContactEngine and associated Documentation (as applicable) during the term of the SoW solely to provide services to Client(s) for its/their business operations.
5.2 We warrant to you that (i) we are the authorized licensor or legal and beneficial owner of all Intellectual Property rights in ContactEngine and all bug fixes and updates made to ContactEngine on or after the Effective Date; (ii) nothing in ContactEngine, bug fixes, and updates infringes upon the Intellectual Property rights of any third party, and (iii) we have the full power and authority to grant to you the rights and licenses related to ContactEngine and all such bug fixes and updates herein contemplated without the consent of any third party. For purposes of this Agreement, “Intellectual Property” means (a) patents, (b) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases, (c) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith, (d) registrations, applications, renewals and extensions for any of the foregoing in (a)-(c), (e) trade secrets, and (f) rights of privacy and publicity.
5.3 You undertake and agree (and shall procure that the Client undertakes and agrees) to:
(a) take all reasonable steps to ensure that Authorized End Users are aware of and accept the terms and conditions of the EUAA before using ContactEngine;
(b) refrain from amending or varying the terms of the EUAA;
(c) keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to ContactEngine and allow us (or our nominee, including without limitation our accountants or auditors), on reasonable notice, access to all accounts and records relating to ContactEngine for the purpose of inspection. The costs of such inspection will be borne by us unless it shows a shortfall exceeding 5% in respect of any period to which the inspection relates between the amount actually paid by you and the amount due to be paid by you, in which event (without affecting or prejudicing any other rights we may have) you will pay us in full the costs (which for the avoidance of doubt will include any reasonable costs of our nominee in carrying out the inspection) and the amount of the shortfall, within 14 days of the date of the invoice for such costs and/or shortfall.
5.4 When providing Customer Data to us or otherwise using ContactEngine, you shall not (and shall procure that Client(s) shall not), without limitation, direct ContactEngine to:
(a) send any unsolicited emails, instant messages, wireless text messages (SMS), voice messages or faxes or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of such solicitation;
(b) send unsolicited emails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not provide the express written consent required by applicable law in the transmission of such messages;
(c) send emails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization;
(d) send emails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by us;
(e) send emails, instant messages, wireless text messages (SMS), voice messages or faxes that contain material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, right of privacy or publicity or any other proprietary rights of any party;
(f) send emails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a Virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
(g) perform or promote illegal activities or promote physical harm or injury against any individual, group or organization, or promote any act of cruelty to animals;
(h) impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
(i) violate any applicable laws or regulations or perform any activity that would cause us to violate any law, statute or regulation;
(j) transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging (including disparaging of us), vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as reasonably determined by us);
(k) submit any copyrighted or trademarked materials without the express permission from the owner;
(l) solicit personal information from anyone under 13 years of age; or
(m) upload or transmit Viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of ContactEngine.
5.5 This list of prohibitions provides examples and is not complete or exclusive. We reserve the right to terminate your right to use ContactEngine if you violate these or similar prohibitions, in which case we shall provide you with two (2) Business Days’ advance written notice of our intent to terminate.
5.6 Unless expressly permitted by the Contract, you shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of ContactEngine and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of ContactEngine and associated Documentation (as applicable) in order to build a product or service which competes with ContactEngine.
5.7 You shall (and shall procure that Client(s) shall) use all commercially reasonable efforts to prevent any unauthorized access to, or use of, ContactEngine and/or any associated Documentation (as applicable) and, in the event of any such unauthorized access or use, promptly notify us.
5.8 Without prejudice to any rights or remedies available to us, including without limitation, those set forth in Section 15, if you or a Client engages in any conduct or activity that constitutes a breach of your obligations under this Contract (the “Offending Activity”), and any Communications System or Provider notifies us that the Offending Activity has resulted in or will, if allowed to continue, result in, a breach of our agreement with such Communications System or Provider, then (a) we shall immediately notify you and demand in writing that you cease and desist (or notify the Client to cease and desist) from engaging in the Offending Activity (the “Cease and Desist Notice”); and (b) if you fail to stop the Offending Activity within the lesser of 48 hours following delivery of such Cease and Desist Notice or the cure period permitted by the Communications System or Provider, we may temporarily suspend your right to use ContactEngine until such time as the Offending Activity ceases.
5.9 You shall not sell ContactEngine through a sales agent or to a sub-distributor or reseller without the prior express written permission of us. Where we agree to any such appointment, you shall ensure that you enter into a written contract with such sales agent, sub-distributor or reseller on terms which provide at least the same level of protection to us as set out in this agreement. In particular, you shall ensure that the following provisions are flowed down mutatis mutandis in such agreement: Sections 5.4, 5.5, 5.6, 5.7, 6.1 and 6.6.
6. Customer Data
6.1 You shall familiarize yourself (and shall procure that Client(s) shall familiarize themselves) with and abide by all applicable laws and regulations and are solely responsible for all acts or omissions that occur under your account for use of ContactEngine, including without limitation, the content of the messages and broadcasts transmitted through ContactEngine. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through ContactEngine. We are in no way attempting to interpret any laws, rules, or regulations for you and you are ultimately responsible to make your own informed decisions regarding your messages, broadcasts and campaigns.
6.2 You represent, covenant and warrant that you shall use ContactEngine only in compliance with the Contract and all other applicable laws (including but not limited to, policies and laws related to spamming, privacy, obscenity or defamation). In the event you use ContactEngine to conduct telemarketing activities, you warrant to us that you will take all required actions necessary to comply with applicable telemarketing registration statutes and regulations, and you shall not use ContactEngine in a manner which will result in a violation of any laws or regulations respecting such activities.
6.3 You or the Client shall own all right, title and interest in and to all of the Customer Data and you shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.4 We shall follow our archiving procedures and security measures for Customer Data as set out in our ISO 27001 data security procedures, details of which shall be made available upon request (subject to confidentiality and provided security clearance). In the event of any loss or damage to Customer Data, your and a Client’s sole and exclusive remedy shall be for us to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described in our ISO 27001 security procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties subcontracted by us to perform services related to Customer Data maintenance and back-up).
6.5 If we process any personal data as part of your or a Client’s use of ContactEngine, it is agreed that the intention shall be for the Client to be the data controller and for us to be a data processor and in any such case:
(a) you shall (and shall procure that Client(s) shall) ensure that you are entitled to transfer the relevant Customer Data to us so that we may lawfully use, process and transfer the personal data in accordance with the Contract on your behalf;
(b) you shall (and shall procure that Client(s) shall) ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation, and that such personal data is accurate and complete;
(c) you acknowledge and agree (and shall procure that Client(s) acknowledge and agree) that all email address and SMS lists that you provide to us will not contain email addresses or SMS numbers of any person that has previously opted-out of receiving emails, SMS or other communications from you or Client;
(d) you shall (and shall procure that Client(s) shall) ensure the relevant subscribe/unsubscribe information in relation to each Conversation to be executed by us. You shall (and shall procure that Client(s) shall) also honor in a timely manner all unsubscribe requests from those who elected not to use our automated subscribe/unsubscribe features;
(e) you acknowledge and understand that emails that are sent through ContactEngine may generate abuse complaints from recipients. We will make a reasonable effort to share with you the email addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who complain about you or a Client;
(f) you acknowledge and agree that you will not (and shall procure that Client(s) will not) in the Conversations detail sensitive personal information, including but not limited to, whole account numbers, access codes/pin numbers, Social Security Numbers, or financial details unless that Conversation is being handled via one of the ContactEngine channels that is encrypted, e.g., web chat or encrypted Instant Messaging;
(g) we provide that the Customer Data will only be transferred or stored outside the European Economic Area with your explicit written approval;
(h) we shall only disclose Customer Data to third-party contractors or professional advisors where such disclosure is obligatory for us under the terms of the Contract or to comply with legal obligations and subject always to us entering into written agreements with such third-party recipients on terms no less stringent than the terms of the Contract from time to time;
(i) we shall process the Customer Data only in accordance with the Contract and any lawful instructions reasonably given by you from time to time;
(j) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage, in our case, in accordance with the information security management standard, ISO27000:2015; and
(k) you acknowledge and agree (and shall procure that Client(s) acknowledge and agree) that we may use anonymize and aggregate Customer Data to conduct analysis for the benefit of our business. You hereby grant to us (and shall procure that Client(s) grant us) the right to conduct such analytics and to provide such data to third parties solely for the purpose of conducting such analysis.
7. Our obligations
7.1 We shall utilize ContactEngine to configure and execute Conversations in accordance with the terms and conditions of the Contract.
7.2 We undertake that ContactEngine will operate substantially in accordance with the Contract.
7.3 The undertaking at Section 7.1 shall not apply to the extent of any nonconformance which is caused by your or a Client’s use of ContactEngine contrary to our instructions, or modification or alteration of ContactEngine by any party other than us or our duly authorized contractors or agents. If ContactEngine does not conform to the foregoing undertaking, we will, at our expense, use all commercially reasonable efforts to correct any such nonconformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in Section 7.1. Notwithstanding the foregoing, we:
(a) do not warrant that your or a Client’s use of ContactEngine will be uninterrupted, timely, secure or error-free, or that ContactEngine or any associated Documentation and/or the information obtained by you through ContactEngine will meet your requirements or expectations; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over third-party communications networks and facilities, including the Internet, and you acknowledge that ContactEngine and any associated Documentation (as applicable) may be subject to limitations, delays and other problems inherent in the use of such communications facilities, including without limitation, geographical or topographical shortcomings in the network of any telecommunications network operator, network capacity, physical obstructions or atmospheric conditions and terms and conditions of telecommunication service providers.
7.4 In utilizing ContactEngine, we shall:
(a) provide you with all necessary cooperation in relation to the Contract;
(b) obtain and maintain all licenses, consents and permissions necessary to enable us to comply with our obligations under the Contract; and
(c) comply with all applicable laws and regulations, as well as codes and guidelines issued by a competent body or authority, with respect to our activities under the Contract.
7.5 This Contract 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 the Contract.
8. Your Obligations
(a) be provided with access to and use of ContactEngine in accordance with the terms and conditions of the Contract;
(b) pay us the Fees in accordance with the terms and conditions of the Contract;
(c) provide us (and shall procure that Client(s) shall provide us) with:
(i) all necessary cooperation in relation to the Contract; and
(ii) all necessary access to such information as may be required by us in order to use ContactEngine, including but not limited to Customer Data, security access information, and configuration services and to enable us to fulfill our obligations in this Agreement and SoWs as appropriate;
(d) comply (and shall procure that Client(s) comply) with all applicable laws and regulations, as well as codes and guidelines issued by a competent body or authority, with respect to the use of ContactEngine under the Contract;
(e) obtain and maintain (and shall procure that Client(s) obtain and maintain) all necessary licenses, consents, and permissions necessary for us, our contractors and agents to perform the obligations under the Contract;
(f) participate in developing the SoWs that will define your requirements of ContactEngine, and perform your duties as outlined in the SoWs. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(g) ensure that the Authorized End Users use ContactEngine and any associated Documentation in accordance with the Contract, including any and all user instructions for ContactEngine, and you shall be responsible for any breach of the Contract by any such Authorized End User;
(h) upon request, procure that a Client provides us with such information about the Authorized End Users as is reasonably required by us for the purposes of managing and enforcing the terms of the EUAA with such persons;
(i) maintain (and shall procure that Client(s) maintain) a written, up-to-date list of current Authorized End Users and:
(i) provide such list to us within five (5) Business Days of our written request at any time;
(ii) notify us in the event an Authorized End User is no longer employed or contracted by you and ensure that such person shall no longer have any right to access or use ContactEngine and any associated Documentation; and
(iii) take all reasonable steps to ensure that only Authorized End Users have access to and use of ContactEngine. If you are notified or become aware that an unauthorized third party has gained access to or used ContactEngine, you shall promptly notify us.
(j) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
(k) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet.
9. Payment of Fees
9.1 We shall invoice you for the Fees pursuant to the payment schedule set out in the SoW, and you shall pay the amount set out in each invoice to us within 30 days after the date of such invoice.
9.2 If we have not received payment of an invoice within 30 days after the due date, and without prejudice to any of our other rights and remedies:
(a) we may, without liability to you, disable your rights to use ContactEngine, and we shall be under no obligation to provide use of or access to ContactEngine while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to the Bank of England base rate plus 3%, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3 All amounts and fees stated or referred to in the Contract: (a) shall be payable in British pounds; (b) are non-cancellable and non-refundable; (c) are exclusive of value-added and other taxes, which shall be added to our invoice(s) at the appropriate rate; and (d) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.4 You will pay or reimburse us for Transaction Taxes that we are required to collect on the sale of services sold to you under this Agreement, it being understood that this obligation is without prejudice to any statutory obligation that either party may owe to a taxing authority. In the event that we are subject to audit by any taxing authority and we shall not have collected Transaction Taxes from you, you shall provide us with documentary evidence that you have paid the Transaction Taxes to the relevant taxing authority. We are hereby authorized to share such documentary evidence with relevant taxing authorities.
9.5 We shall be entitled to increase the Fees on the anniversary of the Effective Date, provided such percentage increase does not exceed that of the Consumer Price Index, as published by the Office for National Statistics (or any successor thereto). Invoices for use of ContactEngine will be adjusted on a pro rata basis (as necessary).
10. Proprietary Rights
10.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property rights related to ContactEngine and any associated Documentation. Except as expressly stated herein, the Contract does not grant you any rights to, or in, our Confidential Information, patents, copyright, know-how, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of ContactEngine and any associated Documentation.
10.2 Neither party shall represent that it has ownership of the other party’s trademarks or at any time do, or cause to be done, any act or thing contesting, or in any way impairing the other party’s right, title, and interest in such trademarks, whether or not they are registered in the jurisdictions in which the party is located or does business.
10.3 We confirm that we have all the rights in relation to ContactEngine and any associated Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of the Contract.
11.1 The Recipient will hold in confidence and, without the consent of the Discloser, except as permitted by Section 11.2, will not use, reproduce, distribute, transmit, or disclose directly or indirectly, the Confidential information of the Discloser. The Recipient shall not remove any proprietary notices of the Discloser from Confidential Information.
11.2 The Recipient may disclose the Discloser’s Confidential Information: (a) to its employees, officers, contractors, representatives, attorneys, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each party shall ensure that persons to whom it discloses the other party’s confidential information comply with this Section 11 and shall be at all times liable for the failure of any such persons to comply with the obligations set out in this Section 11. Without limiting the foregoing, the Recipient agrees that it will exercise at least the same standard of care in protecting the confidentiality of the Discloser’s Confidential Information as it does with its own Confidential Information of a similar nature.
11.3 Confidential Information shall not include information if, and only to the extent that, the Recipient establishes that the information: (a) is or becomes a part of the public domain through no act or omission of the Recipient; (b) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (c) is lawfully disclosed to the Recipient by a third party that is not subject to any confidentiality requirement at the time it is received by the Recipient without reference to the Confidential Information; (d) is independently developed by the Recipient; or (e) is disclosed by the Recipient pursuant to a requirement of a governmental agency or by operation of law, provided that the Recipient shall disclose only that part of the Confidential Information which it is required to disclose and shall notify the Discloser promptly after receiving notice from such agency and prior to such disclosure in order to permit the Discloser to attempt to prevent or restrict such disclosure should it so elect. No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.1 You shall defend and hold harmless us and our affiliates, officers, directors, employees, agents, successors and assigns (each, a “ContactEngine Limited Indemnitee”) from and against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred by any ContactEngine Limited Indemnitee, to the extent such losses arise from any third party or governmental claim, action, or proceeding arising out of or in connection with your or a Client’s use of ContactEngine and any associated Documentation under the Contract or alleging that: (i) any Customer Data infringes any Intellectual Property or right in Confidential Information; (ii) ContactEngine infringes any Intellectual Property or right in Confidential Information existing as of the Effective Date arising from your or a Client’s unauthorized modification or combination of ContactEngine with a product or service not authorized by us to be combined with ContactEngine, or unintended or unauthorized use where ContactEngine would not have infringed absent such modification or combination or use of ContactEngine in a manner not authorized or intended hereunder; or (iii) a breach by you in Section 5 involving a violation of applicable law, provided that we provide you with written notice of the suit, claim or proceeding, demanding or seeking such damages and provide you with information, cooperation and assistance necessary to enable you to defend such suit, claim, or proceeding in a timely fashion. We reserve the right, at our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with us in the defense of such matter, including payment for any and all losses, liabilities, expenses, damages and costs, including reasonable legal fees and court costs.
12.2 If all or any material part of ContactEngine is, or in our opinion, may become the subject of an infringement claim, we may at our own expense promptly (i) replace ContactEngine with a compatible, functionally equivalent, non-infringing alternative, (ii) modify or take other action so that ContactEngine provides you with the same function or benefit without infringing upon the rights of any third party, (iii) procure the right for you to continue accessing and using ContactEngine, or, (iv) discontinue the use of and access to ContactEngine and reimburse you for any payment made in advance for such discontinued use of and access to ContactEngine that cannot be delivered, all without any additional cost to you, and in our sole and absolute discretion.
12.3 The indemnification obligations of this section survive termination of this Contract.
13. Disclaimer of Warranties
13.1 CONTACTENGINE AND ANY ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS” AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
13.2 EXCEPT IN RELATION TO DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE CONTACTENGINE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION.
14. Limitation of Liability
14.1 EXCEPT IN RELATION TO DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, IN NO EVENT WILL OUR COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY YOU TO US DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
14.2 EXCEPT IN RELATION TO DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PARTNER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS CONTRACT ALLOCATE THE RISKS BETWEEN US AND YOU.
15. Term and Termination
15.1 This Agreement shall commence on the Effective Date and will remain in full force and effect for 3 years (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for additional consecutive 3-year periods (the “Renewal Terms”). The Initial Term, together with any and all Renewal Terms, is collectively referred to as the “Term”. If we are performing services pursuant to a SoW upon expiration or termination of the Term, and such SoW has not been terminated by the parties, the Term will extend automatically and conclude following completion of performance of the applicable SoW.
15.2 The term of each SoW developed under the Contract shall be defined in the appropriate SoW.
15.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement, for any reason or no reason, upon delivery of written notice to the other party of not less than ninety (90) days’ prior written notice of a Renewal Term.
15.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement, with immediate effect, by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this Agreement;
(d) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction. To the extent permitted by applicable law, this Agreement shall automatically terminate without notice in the event that (i) a receiver, trustee, liquidator, administrator, administrative receiver or a similar person should be appointed for either party or its property, (ii) either party should become insolvent or unable to pay its debts as they mature or cease to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors, (iii) any proceedings should be commenced against either party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof, or (iv) either party should be liquidated or dissolved.
(e) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(f) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfill its obligations under this Agreement has been placed in jeopardy.
15.5 In the event any applicable law or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for us to provide you with access to or use of ContactEngine, without affecting any other right or remedy available to us, we may terminate this Agreement with immediate effect upon giving 14 Business Days’ written notice to you.
15.6 On termination of this Agreement for any reason, the following shall apply, unless a SoW between you and us is in force at the date of termination, and such licenses, use, and equipment are required for the performance of such SoW:
(a) all licenses granted to you under this Agreement shall immediately terminate;
(b) we shall cease to provide you with the right to use or access to ContactEngine;
(c) each party shall return and make no further use of any equipment, property, Documentation (as applicable), Confidential Information and other items (and all copies of them) belonging to the other party, save that we shall be entitled to retain and use any aggregated and anonymized data for our business purposes;
(d) all outstanding sums payable by you to us under this Agreement will become immediately due and payable;
(e) we may destroy or otherwise dispose of any of the Customer Data in our possession unless:
(i) the Customer Data is used by ContactEngine in relation to another SoW between you and us then in force at the date of termination; or
(ii) we receive, no later than ten days after the effective date of termination, a written request for the delivery to you of the then-most-recent back-up of the Customer Data. We shall use commercially reasonable efforts to deliver the back-up to you within 30 days of our 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);
(f) you shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
(g) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages which existed at or before the date of termination, shall not be affected or prejudiced. We will refund to you the pro-rated amount of any and all fees prepaid by you in respect of any periods of time which are after the date of such expiration or termination except for any non-refundable third-party costs incurred by us with your prior consent or pursuant to the requirements of any SoWs.
(h) Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve either party of its obligations to pay all undisputed Fees that are owed under this Agreement as of the date of termination. Each party shall reasonably cooperate with the other party and shall take any action reasonably requested by such other party for the purpose of performing or satisfying obligations to be performed or satisfied hereunder following the expiration or termination of this Agreement.
16. Force Majeure
We shall not be in breach of the Contract, or be liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control, provided that you are promptly notified of such an event and its expected duration. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one month, you may terminate the Contract by giving five (5) days’ written notice to us.
17. Marketing Rights
In consideration for our provision of ContactEngine and any associated Documentation, you hereby grant us a non-exclusive, worldwide, irrevocable and royalty-free license to use your trademark and trading name (or that of the particular business division which will use ContactEngine (as applicable)) and to refer to your use of ContactEngine in our sales and promotion material for the duration of the term of the Contract and five (5) years thereafter.
18.1 No variation of the SoW shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
18.2 We have the right to revise this Agreement from time to time. If we opt to revise this Agreement as they apply to the SoW during the term of this Contract, we will provide you with no less than ten (10) Business Days’ notice of the changes. Your use of ContactEngine after the effective date of the new terms and conditions will constitute your acceptance of the same. If you do not wish to continue using ContactEngine under the new terms and conditions, you may terminate the Contract.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and Remedies
The parties acknowledge that (i) any use or threatened use by you of ContactEngine in a manner inconsistent with the Contract, (ii) any use or threatened use by us of Customer Data in a manner inconsistent with the Contract, or (iii) any misuse by one party of the other party’s Confidential Information, may cause immediate irreparable harm for which there may be no adequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach. The parties agree and stipulate that the party seeking such relief shall be entitled to such injunctive relief without posting a bond or other security. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
22. Entire Agreement
22.1 The Contract and any documents 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.
22.2 Each of the parties acknowledges and agrees that in entering into the Contract 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 the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
23.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.
23.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract, provided that we give you prior written notice of such dealing.
24. No Partnership or Agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. Third-Party Rights
No one other than a party to the Contract and their successors and permitted assignees shall have any right to enforce any of its terms.
26.1 Any notice required to be given under the Contract shall be in writing and shall be either: (i) delivered by hand; (ii) sent by prepaid first-class post or recorded delivery post to the other party at its address set out in the SoW or such other address as may have been notified by that party for such purposes; (iii) sent by fax to the other party’s fax number as set out in the SoW or such other fax number as may have been notified by that party for such purposes; or (iv) sent by email to the other party’s contact email address as set out in the SoW or such other email address as may have been notified by that party for such purposes.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9:00 a.m. on the first Business Day following delivery). A correctly addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
27. Governing Law; Jurisdiction
27.1 In the event that any dispute may arise under or in connection with the Contract, which is not settled between our commercial department and your appropriate representative, the parties shall first seek to resolve the dispute by negotiations between senior executives who have authority to settle the controversy. When a party believes there is a dispute relating to the Contract or any SoW, the party will give the other party written notice of the dispute. The senior executives shall meet at a mutually acceptable time and place within fifteen (15) Business Days after the date of the notice to exchange relevant information and to attempt to resolve the dispute.
27.2 All offers, promises, conduct and statements, whether written or oral, made in the course of the negotiations by any of the parties, their agents, employees, experts and attorneys, are confidential, privileged and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
27.3 If a dispute has not been resolved within sixty (60) days after the original notice of a dispute, or if a party hereto in good faith believes that the dispute cannot be settled amicably between the parties within a sixty (60) day period, then either party may seek to have the dispute resolved by a court of competent jurisdiction pursuant to Section 27.4.
27.4 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.