PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY:
This agreement is a legal agreement between the business entity described on the sign-on page ("Customer" or "You") and Mobile Streams plc, a company registered in England with Company No: 03696108 and having its registered address at 125 Wood Street, London, United Kingdom, EC2V 7AW ("MOS") and governs Your access to and use of the Software and the Documentation ("Agreement").
Each of MOS and You are a "party" and together MOS and You are the "parties".
By ticking the checkbox that indicates you accept the terms and conditions on the sign-on page, You agree to be bound by the terms of this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation set out in Schedule 1 (Definitions and Interpretation) shall apply to this Agreement.
2. RIGHTS OF USE AND PROVISION OF SOFTWARE
2.1 Subject to the terms of this Agreement, MOS hereby grants to You a non-exclusive, non-transferrable right (without the right to grant sub-licences) to permit the Authorised Users to use the Software and the Documentation (and any Updates and Upgrades) for Your internal business purposes during the Term.
2.2 The Customer acknowledges and agrees that the Software is owned by Krunch Data and that the Software is made available through a platform provided by Krunch Data. In the event that Krunch Data no longer provides the platform on which the Software is made available to You pursuant to this Agreement, MOS will notify You and this Agreement will automatically terminate. You will be able to continue to use the Software by entering into an agreement directly with Krunch Data which shall be on the same terms and condition and Subscription Charges as set out in this Agreement as at the date of termination.
3. OPERATING SYSTEM REQUIREMENTS
3.1 In order to access and use the Software, You will require:
3.1.1 Google Chrome as Your web browser application; and
3.1.2 One of the following operating systems:
(a) Windows 7 or a later version; or
(b) macOS version 10 or a later version.
4. AUTHORISED USERS
4.1 The Customer shall, and shall procure all Authorised Users shall, at all times, comply with all provisions of this Agreement.
4.2 The Customer is entitled to remove an individual as an Authorised User and replace them with another individual in accordance with the terms of this Agreement, but accounts created for Authorised Users can only be used by that Authorised User and cannot be shared and/or used by any other person. Only one login will be provided per Authorised User.
4.3 The Customer shall not knowingly access, store, distribute or transmit any viruses, or any material during the course of its use of Software that:
4.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.3.2 infringes any rights of third parties;
4.3.3 facilitates illegal activity;
4.3.4 depicts sexually explicit images;
4.3.5 promotes unlawful violence;
4.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.3.7 is otherwise illegal or causes damage or injury to any person or property.
4.4 The Customer shall not:
4.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Software and/or Documentation in order to build a product or service which competes with the Software and/or the Documentation; or
(d) use the Software and/or Documentation to provide services to third parties; or
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorised Users; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under this Agreement.
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify MOS.
4.6 The Customer shall, and shall procure that each Authorised User shall, comply with the Fair Usage Policy.
5. MOS OBLIGATIONS
5.1 In consideration of either: (i) the Customer undertaking an Evaluation; or (ii) the payment of the Subscription Charges , MOS shall, during the Term, make available the Software and the Documentation to the Customer on and subject to the terms of this Agreement.
5.2 MOS may suspend access to the Software to all or some of the Authorised Users if:
5.2.1 MOS suspects that there has been any misuse of the Software or breach of this Agreement; or
5.2.2 in accordance with clause 7.5.1 of this Agreement.
5.3 Where the reason for the suspension is suspected misuse of the Software or breach of this Agreement, without prejudice to its rights under this Agreement, MOS will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
5.4 MOS shall make available support services to the Customer in relation to the Software and the Customer may contact MOS to receive such support services:
5.4.1 through MOS' web chat facility made available on the MOS website; or
5.4.2 by sending an email to MOS at firstname.lastname@example.org ; or
5.4.3 by visiting the frequently asked questions page on the MOS website.
6. UPDATES AND UPGRADES
6.1 The Customer acknowledges that MOS shall be entitled to modify the features and functionality of the Software by means of an Update or Upgrade.
6.2 MOS shall use its reasonable endeavours to ensure that such Updates or Upgrades do not adversely affect the use of the Software by the Customer or the Authorised Users.
7. SUBSCRIPTION CHARGES
7.1 The Subscription Charges and any other charges expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described on the pricing page of the MOS website.
7.2 No Subscription Charges shall be payable during an Evaluation.
7.3 All undisputed invoices shall be paid by the Customer:
7.3.1 in respect of a Monthly Subscription, on the Effective Subscription Date and thereafter on the anniversary of the Effective Subscription Date in each calendar month; or
7.3.2 in respect of an Annual Subscription, annually in advance on the Effective Subscription Date and thereafter on each anniversary of the Effective Subscription Date,
(each (as applicable) the ("Due Date")).
7.4 The currency of this Agreement is pounds sterling and all amounts due under this Agreement shall be invoiced in pounds sterling. The Subscription Charges are inclusive of VAT.
7.5 If MOS has not received payment within ten (10) days of the applicable Due Date, and without prejudice to any other rights and remedies of MOS:
7.5.1 MOS may, without liability to the Customer, disable the Authorised User's password, account and access to all or part of the Software and MOS shall be under no obligation to provide the Customer with access to the Software while the invoice(s) concerned remain unpaid; and
7.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.6 MOS shall be entitled to increase the Subscription Charges at any time during the Term upon sixty (60) days' prior notice to the Customer and the Subscription Charges shall be deemed to have been amended accordingly on expiry of such notice.
8.1 Each party warrants and undertakes that:
8.1.1 it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and
8.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under this Agreement.
8.2 MOS warrants to the Customer that:
8.2.1 the Software will incorporate security features reflecting the requirements of Good Industry Practice; and
8.2.2 the Software when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.
9. CUSTOMER'S RESPONSIBILITIES
9.1 The Customer shall (and shall ensure all its Authorised Users shall):
9.1.1 at all times comply with all applicable laws relating to:
(a) the use or receipt of the Software; and
(b) its obligations under this Agreement;
9.1.2 provide MOS with all necessary co-operation in relation to this Agreement and access to such information as may be required by MOS in order to meet its obligations under this Agreement;
9.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
9.1.4 ensure that the Authorised Users use the Software and the Documentation in accordance with the terms of this Agreement;
9.1.5 ensure that its network and systems comply with the relevant specifications provided by MOS from time to time; and
9.1.6 be, to the extent permitted by applicable law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to MOS' data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
10. INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights in and to the Software (including any source code) belong to and shall remain vested in MOS, Krunch Data or the relevant third-party owner (as applicable).
10.2 All Intellectual Property Rights in and to the information (including Customer Data) that is contained in reports, spreadsheets and all other output generated by the Customer's use of the Software belong to and shall remain vested in the Customer.
10.3 Except for the rights expressly granted in this Agreement, the Customer and any Authorised Users and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Software and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
10.4 The artwork and images used in the NFT are property of the copyright holder and remain so. Purchasing of an NFT does not give the purchaser the right to reproduce or use the images or artwork contained within the NFT.
10.5 This clause 10 shall survive the termination or expiry of this Agreement.
11.1 Subject to the remainder of this clause 11 and clause 14.3, MOS shall indemnify and keep the Customer indemnified at all times for all costs and damages awarded or agreed in settlement or final judgment of a Third Party Claim, provided that:
11.1.1 MOS is given prompt notice of any such claim;
11.1.2 the Customer provides reasonable co-operation to MOS in the defence and settlement of such claim, at MOS' expense; and
11.1.3 MOS is given sole authority to defend or settle the claim.
11.2 If MOS reasonably determines, or any third party alleges, that the use of the Software or the Documentation by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, MOS shall at its own cost and option:
11.2.1 modify the Software or the Documentation in such a way that they no longer infringe the relevant Intellectual Property Rights; or
11.2.2 procure for the Customer the right to use the Software or the Documentation in accordance with this Agreement.
11.3 MOS shall have no liability or obligation under this clause 11 in respect of (and shall not be obliged to defend) any Third Party Claim which arises from:
11.3.1 any breach of this Agreement by the Customer; or
11.3.2 use of the Software or the Documentation (or any part) otherwise than in accordance with this Agreement; or
11.3.3 a modification of the Software or Documentation by anyone other than MOS; or
11.3.4 the Customer's use of the Software or the Documentation in a manner contrary to the instructions given to the Customer by MOS; or
11.3.5 the Customer's use of the Software or the Documentation after notice of the alleged or actual infringement from MOS or any appropriate authority.
11.4 The indemnity under this clause 11 shall not apply during an Evaluation.
12. DATA PROTECTION
12.1 Each party shall comply with its respective obligations under Schedule 2 (Data Protection) of this Agreement.
13. CONFIDENTIAL INFORMATION
13.1 Each party shall maintain the confidentiality of the other party's Confidential Information and shall not without the prior written consent of the other party, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.
13.2 Each party undertakes to:
13.2.1 disclose the other party's Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and:
(a) shall procure that such persons are made aware of and agree in writing to observe the obligations in this clause 13; and
(b) shall be responsible for the acts and omissions of such third parties as if they were that party's own acts or omissions.
13.3 The provisions of this clause 13 shall not apply to information which:
13.3.1 is or comes into the public domain through no fault of the receiving party, its officers, employees, agents or contractors;
13.3.2 is lawfully received by the receiving party from a third party free of any obligation of confidence at the time of its disclosure;
13.3.3 is independently developed by the receiving party, without access to or use of the disclosing party's Confidential Information; or
13.3.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the receiving party, where possible, notifies the disclosing party at the earliest opportunity before making any disclosure.
13.4 No investors in Mobile Streams can comment or enter any activity related on Discord.
13.5 This clause 13 shall survive the termination or expiry of this Agreement.
14. LIMITATION OF LIABILITY
14.1 Notwithstanding any other provision of this Agreement, neither party's liability shall be limited in any way in respect of the following:
14.1.1 death or personal injury caused by negligence;
14.1.2 fraud or fraudulent misrepresentation; or
14.1.3 any other liability which cannot be excluded or limited by applicable law.
14.2 Neither party shall be liable to the other party whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
14.2.1 loss of profit;
14.2.2 loss of goodwill;
14.2.3 loss of business;
14.2.4 loss of anticipated savings; and/or
14.2.5 special, indirect or consequential loss.
14.3 Subject to clauses 14.1 and 14.2, MOS' total aggregate liability howsoever arising under or in connection with this Agreement in each Contract Year shall not exceed of an amount equal to the Subscription Charges paid and/or payable to MOS in the Contract Year in which the event giving rise to the claim arose.
14.4 Except as expressly and specifically provided in this Agreement:
14.4.1 the Customer assumes sole responsibility for results obtained from the use of the Software by the Customer and for conclusions drawn from such use and MOS shall have no liability in respect of the results obtained or for any conclusions drawn from such use;
14.4.2 the Customer acknowledges that the Software may enable or assist it or any of the Authorised Users to access the website content of and/or correspond with third parties via third-party websites and that it does, and the Authorised Users do, so solely at its own risk. MOS makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer or an Authorised User (as the case may be), with any such third party;
14.4.3 MOS shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MOS by the Customer in connection with the Software, or any actions taken by MOS at the Customer's direction;
14.4.4 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
14.4.5 the Software and the Documentation are provided to the Customer on an "as is" basis.
15. TERM AND TERMINATION
15.1 This Agreement shall come into force on the Effective Date and:
15.1.1 in respect of an Evaluation, shall continue for the Evaluation Period unless the Customer purchases an Annual Subscription or a Monthly Subscription in which case the Agreement shall continue beyond the Evaluation Period until terminated in accordance with clause 15.1.2; or
15.1.2 in respect of a Monthly Subscription or Annual Subscription, shall continue until:
(a) either party provides the other party with at least sixty (60) days prior written notice of its intention to terminate this Agreement; or
(b) otherwise terminated earlier in accordance with this Agreement,
15.2 Either party may terminate this Agreement immediately at any time by giving notice in writing to the other party if:
15.2.1 the other party commits a material breach of this Agreement and such breach is not remediable;
15.2.2 the other party commits a material breach of this Agreement which is not remedied within thirty (30) days of receiving written notice of such breach;
15.2.3 the other party is subject to an Insolvency Event ; or
15.2.4 any Force Majeure Event prevents the other party from performing its obligations under this Agreement for any continuous period of three (3) months.
15.3 If the Customer does not purchase an Annual Subscription or Monthly Subscription by the end of the Evaluation Period, the Customer's access to the Software shall terminate and the Customer shall, and shall procure that each Authorised User shall, stop using the Software and Documentation.
16. CONSEQUENCES OF TERMINATION
16.1 On termination or expiry of this Agreement (for any reason):
16.1.1 the Customer shall, and shall procure that each Authorised User shall stop using the Software and Documentation;
16.1.2 the Customer shall make payment of all Subscription Charges properly due and payable up to the date of termination;
16.1.3 subject to paragraph 2.11.1 of Schedule 2 (Data Protection), MOS shall delete all Customer Data held on the Software within fourteen (14) days following the date of termination or expiry; and
16.1.4 each party shall destroy and delete any copies of the other party's Confidential Information in its possession or control (or in the possession or control of any person acting on its behalf).
16.3 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
17. FORCE MAJEURE
17.1 Provided that it has complied with clause 17.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the " Affected Party"), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
17.2 The Affected Party shall:
17.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of such Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of such Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
17.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18. ANTI-BRIBERY AND CORRUPTION
18.1 MOS shall:
18.1.1 comply with all applicable laws, statutes, regulations, relating to anti-bribery and anti-corruption including the Bribery Act 2010 (" Relevant Requirements");
18.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
18.1.3 have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
19.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
20.1 Any notice given by a party under this Agreement shall be:
20.1.1 in writing and in English; and
20.1.2 sent to the relevant party at its registered company address either:
(a) by hand; or
(b) by pre-paid first-class post or other next working day delivery service; or
(c) by email to (i) MOS at: email@example.com; or (ii) the Customer at the email address provided by the Customer at the point of acceptance of this Agreement.
20.2 Any notice shall be deemed to have been delivered:
20.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the registered address of the other party; or
20.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the third Business Day after posting or at the time recorded by the delivery service ; or
20.2.3 if sent by email, at the point of delivery provided no failed delivery receipt is received by the sending party.
20.3 Any change to the contact details of a party shall be effective:
20.3.1 on the date specified in the notice as being the date of such change; or
20.3.2 if no date is so specified five (5) Business Days after the notice is deemed to be received.
21.1 No variation of this Agreement shall be valid or effective unless it is made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 The Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without MOS' prior written consent.
22.2 MOS may at any time assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part under this Agreement without the consent of the Customer.
23. NO PARTNERSHIP OR AGENCY
The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party's behalf.
24.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
24.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
25.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
25.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
25.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
26. THIRD PARTY RIGHTS
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.
27. DISPUTE RESOLUTION
27.1 Any dispute between the parties that is not resolved informally between the parties must be referred in writing by either party to a representative of the other party. If upon expiry of thirty (30) Business Days following referral to the representative, the dispute remains unresolved, the dispute may be referred to a director of each party to attempt to resolve.
27.2 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 27.1 have been completed.
28. GOVERNING LAW AND JURISDICTION
This Agreement 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 & Wales. Each party irrevocably agrees that the courts of England & Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS AND INTERPRETATION
1. In this Agreement:
Annual Subscription" means the Customer's annual subscription to access and use the Software subject to the payment of the Subscription Charges;
Authorised Users" means the employees and contractors of the Customer who are authorised by the Customer to use Software and Documentation;
Business Day" means a day other than a Saturday, Sunday or bank or public holiday in England;
"Confidential Information" means information that is either clearly labelled as confidential, is of a confidential nature or would appear to a reasonable person to be confidential, and shall include all (i) know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind, (ii) all information produced or developed in the performance of this Agreement; (iii) Customer Data; and (iv) the Software and the results of any performance tests in relation to the Software;
"Contract Year" means the period of twelve (12) months from the Effective Date and each subsequent period of twelve (12) months commencing on the anniversary of the Effective Date;
"Customer Data" means all data in any form (including Customer Personal Data (as defined in Schedule 2 (Data Protection))) that is provided to MOS or uploaded or hosted on any part of the Software by the Customer, or by any Authorised User, or generated for the Customer by MOS in providing the Software;
"Documentation" means the documentation relevant to Software provided by MOS to the Customer from time to time;
"Due Date" has the meaning given in clause 7.3;
"Effective Date" means the date the Customer ticks the checkbox on the sign-on page to indicate that they accept the terms of this Agreement, and enters in to this Agreement;
"Effective Subscription Date" means the date on which the Customer purchases an Annual Subscription or Monthly Subscription (as applicable) for the Software;
"Evaluation" means the provision by MOS of access to the Software and Documentation to the Customer on a free of charge basis for the Evaluation Period;
"Evaluation Period" means the period of thirty (30) calendar days from the Effective Date unless otherwise extended by agreement between the parties;
"Fair Usage Policy" means the MOS fair usage policy in relation to the Software which is available at: www.mobilestreams.com;
"Force Majeure Event" means any circumstance not within a party's reasonable control including, without limitation (a) acts of God, flood, drought, earthquake or other natural disasters; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; and (h) interruption or failure of utility service;
"Good Industry Practice" means the degree of skill and diligence which would reasonably be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances;
"Insolvency Event" means, where a party becomes insolvent or unable to pay its debts as and when they become due; (ii) an order is made or a resolution is passed for the winding up of a party (other than voluntarily for the purpose of solvent amalgamation or reconstruction); (iii) a liquidator, administrator, administrative receiver, receiver, or trustee is appointed in respect of the whole or any part of a party's assets or business; (iv) a party makes any composition with its creditors; a party ceases to continue its business; or (vi) as a result of debt or maladministration a party takes or suffers any similar or analogous action in any jurisdiction;
"Intellectual Property Rights" means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
"Krunch Data" means Krunch Data Limited (registered number 11716543), a company registered, incorporated and existing under the laws of England and Wales with its registered office at, 2 Blue Cedars, Warren Road, Banstead, Surrey SM7 1NT United Kingdom;
"Monthly Subscription" means the Customer's monthly subscription to access and use the Software subject to the payment of the Subscription Charges;
"Schedule" means a schedule to this Agreement;
"Software" means the software provided to provide content insight and shall include any Upgrade and/or Update;
"Subscription Charges" means the charges payable by the Customer for an Annual Subscription or a Month Subscription (as applicable) to the Software;
"Term" has the meaning given in clause 15.1;
"Third Party Claim" means any claim brought by a third party against the Customer, which arises in connection with the Customer's use of the Software or the Documentation;
"Update" means a hotfix, patch or minor version update to the Software;
"Upgrade" means a major version upgrade to the Software; and
"VAT" means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.
2. In this Agreement, unless otherwise stated:
2.1 words in the singular include the plural and vice versa;
2.2 any words that follow "include", "includes", "including", " in particular" or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and
2.3 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time .
1.1 In this Schedule 2, the following definitions shall apply:
1.1.1 "Controller", "Data Subject", "International Organisation", "Personal Data", "Personal Data Breach", " Processor" and "processing" shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including "process", "processed" and " processes" shall be construed accordingly);
1.1.2 "Customer Personal Data" means Personal Data received from or on behalf of the Customer in connection with the performance of MOS' obligations under this Agreement;
1.1.3 "Data Protection Laws" means, as binding on either party:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
1.1.4 "GDPR" means the General Data Protection Regulation, Regulation (EU) 2016/679; and
1.1.5 "Sub-Processor" means any agent, subcontractor or other third party (excluding its employees) engaged by MOS for carrying out any processing activities on behalf of the Customer in respect of the Customer Personal Data.
2. DATA PROCESSING TERMS
2.1 The parties agree that the Customer is a Controller and that MOS is a Processor for the purposes of processing Customer Personal Data pursuant to this Agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Customer Personal Data. The Customer shall ensure all instructions given by it to MOS in respect of Customer Personal Data shall at all times be in accordance with Data Protection Laws.
2.2 The Customer warrants, represents and undertakes, that all Customer Personal Data shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws.
2.3 MOS shall process Customer Personal Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
2.4.1 MOS shall:
(a) only process (and shall ensure MOS personnel only process) the Customer Personal Data in accordance with this clause 2 and Annex A (Processing Particulars) to this Schedule 2 except to the extent:
(i) that alternative processing instructions are agreed between the parties in writing; or
(ii) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(b) without prejudice to clause 2.1 of this Schedule, if MOS believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws, it shall promptly inform the Customer.
2.5 Security and Personnel
2.5.1 Taking into account the state of technical development and the nature of processing, MOS shall implement and maintain appropriate technical and organisational measures to protect the Customer Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
2.5.2 MOS shall ensure that all persons authorised by it to process Customer Personal Data are subject to a binding written contractual obligation to keep the Customer Personal Data confidential (except where disclosure is required in accordance with applicable, in which case MOS shall, where practicable and not prohibited by applicable law, notify the Customer of any such requirement before such disclosure).
2.6.1 MOS shall (at the Customer's cost):
(a) assist the Customer in ensuring compliance with the Customer's obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to MOS; and
(b) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer's obligations to respond to requests by Data Subjects exercising the rights of Data Subjects under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Customer Personal Data.
2.7 International Transfers
2.7.1 The Customer hereby consents to MOS having the right to process and/or transfer, or otherwise directly or indirectly disclose, any Customer Personal Data in or to countries outside the United Kingdom and the European Economic Area or to any International Organisation without the prior written consent of the Customer for the purposes of providing the Software (including any support services) to the Customer under this Agreement provided that:
(a) MOS and/or the Customer has provided appropriate safeguards in relation to the transfer;
(b) MOS complies with Data Protection Laws in respect of any transfer; and
(c) MOS complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer Personal Data.
2.8 Audits and Processing
2.8.1 MOS shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate MOS' compliance with the obligations placed on it under this Schedule 2, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any twelve (12) month period under this clause 2.8.1 of this Schedule).
2.9.1 MOS may engage any Sub-Processor for carrying out any processing activities in respect of the Customer Personal Data without Your prior consent. Before appointing any Sub-Processor, MOS shall inform You of the appointment (including the name and location of such Sub-Processor and the activities it will perform) by electronic mail. You may object to the appointment of the Sub-processor by giving written notice to MOS within ten (10) days of being informed by MOS of such appointment.
2.9.2 MOS shall:
(a) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Customer Personal Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule 2; and
(b) remain fully liable to the Customer under this Agreement for all acts and/or omissions of its Sub-Processor as if they were its own.
2.10 Personal Data Breach
2.10.1 MOS shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Customer Personal Data.
2.11 Deletion and Return of Customer Personal Data
2.11.1 On termination or expiry of this Agreement, at the Customer's cost and the Customer's option, MOS shall either return all of the Customer Personal Data to the Customer or securely dispose of the Customer Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires MOS to store such Customer Personal Data.
Processing of the Customer Personal Data by MOS under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out below:
1. SUBJECT-MATTER OF PROCESSING:
The subject matter of the processing is to allow MOS to make available the Software to the Customer for use within its business.
2. DURATION OF THE PROCESSING:
The duration of the processing shall be for the Term of the Agreement unless MOS is required to process Customer Personal Data beyond the date of termination of this Agreement in order to comply with applicable laws and/or regulations.
3. NATURE AND PURPOSE OF THE PROCESSING:
MOS shall provide the Software to allow the Customer to input, access and store Customer Personal Data in the Software which will be provided to the Customer as a software as a service solution. The purpose of the processing is to allow MOS to make the Software available to the Customer in accordance with the terms of this Agreement.
4. TYPE OF PERSONAL DATA:
The following types of Personal Data shall be processed by MOS:
5. CATEGORIES OF DATA SUBJECTS:
The following categories of Data Subjects shall be captured under this Agreement: