Asterlogic Limited

Master Terms

1.1. Definitions

“Agreement” means these Master Terms, the Services Agreement and any special or additional terms or order form which constitute a contract between Asterlogic Limited with offices at Regent House, 316a Beulah Hill, London, SE19 3HF, United Kingdom, the “Supplier” and you the “Customer”. The Supplier wishes to provide, and you wish to have the right to access pursuant to the terms of this Agreement, a subscription to the AgenTrak Cloud Services offered by the Supplier, the “Cloud Services” and desktop applications, the Supplier AgenTrak Software that gets installed on the Customer site or hardware, the "Premise Software";
"Data Protection Legislation" means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
“Charges” means all charges (including any Licence Fees) of the Supplier as specified in the Services Agreement or as otherwise agreed in writing between the Customer and the Supplier;
“Commencement Date” means the date specified in the Services Agreement, and (b) Customer’s initial access to the Services through any online registration, provisioning or order process;
"Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures" means as defined in the Data Protection Legislation;
“Current Release” means the most recent version of the Software which is made available by the Supplier;
"Cloud Services” means the Supplier’s cloud services relating to the Software as detailed in the Services Agreement;
"Data Protection Legislation" means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
“Equipment” means all the Customer’s computer hardware on which the Software is installed or downloaded as appropriate by way of the Customer’s server to secure the computer configuration of the Software in accordance with the Specification;
“Initial Term” means the period of 3 calendar years from the Installation Date unless otherwise specified in the Services Agreement;
“Installation Date” means the initial date on which the Software is first used or operated on any of the Equipment;
“IPR” means all intellectual property rights including, without limitation, all patents, copyright and all related rights, trademarks and service marks, trade names and domain names, design rights, database rights (including rights in the design or structure of any database), confidential knowhow, database rights and all other similar rights (whether registered or unregistered) and all applications for the same anywhere in the world;
“Licence” means the Licence specified in clause 2;
“Licence Fees” means the fees for the use of the Software as set out in the Services Agreement as may be increased by intimation by the Supplier to the Customer from time to time;
“Licenced Materials” means the Software, Current Releases and any other material supplied to the Customer with the Software or as part of the Services;
“Licenced Users” means such of the Customer’s employees and authorised representatives that are allocated by the Supplier to run the Software in terms of the Services Agreement, Licences are sold on a named user basis with only one name change allowed per 12-month period per named user licence (other name changes may be permitted at the Supplier’s discretion);
“Maintenance Release” means any release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a Current Release;
"Permitted Purpose" means the use of the Platform by the Customer to remotely monitor and manage productivity of its employees;
“Platform” means the cloud software platform operated by the Supplier and that will be made available to the Customer as a service via the internet under the Services Agreement and these Master Terms;
“Premise Software” means the Supplier Software that gets installed on the Customer site or hardware as detailed in the Services Agreement;
“Renewal Term” means the period defined in clause 12.1;
“Services” means the Supplier’s services as specified in the Services Agreement all as may be varied by agreement of the Supplier and the Customer from time to time;
“Services Agreement” means the agreement between Genesys and the Customer for the supply of the Services in accordance with these Master Terms;
“Service Hours” means the standard hours during which the Services will be provided as specified by the Supplier from time to time;
“Software” means the computer programs specified in the Services Agreement including any Maintenance Releases but excluding Source Code material and all preparatory design material;
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software.
“Specification” means the functional specification (if any) for the Software together with the minimum and/or optimum system environment or hardware specifications for use of the Software published by the Supplier on the Website;
“Standard Support Hours” means the standard hours during which the Support will be provided as specified in clause 7.4;
“Support” means the support service comprising advice by telephone, email, the Website or other means available to the Supplier as may be appropriate and necessary to resolve the Customer’s difficulties and queries in relation to operation of the Software;
“Term” means the period set out in the Services Agreement including, without prejudice to that generality, the Initial Term and any Renewal Term;
“Third Party Intellectual Property Rights” means the IPR of any third party;
"UK Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
“Website” means the Supplier’s website www.asterlogic.co.uk as updated from time to time.

1.2. Interpretation

In the event of any conflict between the Services Agreement and these Master Terms, the terms of the latter shall prevail.

2. Grant of Licence

2.1. Subject to the terms of this Agreement, in consideration of the payment by the Customer of the Licence Fees and the Charges, the Supplier grants to the Customer a non-exclusive and non-transferable licence to use the Software (‘the Licence’) during the Term.
2.2. The Licence entitles the Customer to use the same on the Equipment in accordance with this Agreement.
2.3. The initial order via the Services Agreement, will act as a minimum licence commit, to which the Customer will not drop below during the term of the contract. Every additional order via a new Services Agreement thereafter will increase the minimum commit by the ordered licence amount.

3. Platform

3.1. The Supplier will make available the Platform to the Customer by setting up an account for the Customer on the Platform and providing to the Customer login details.
3.2. Subject to the limitations set out in these Master Terms, the Supplier hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser during the Initial Term and any Renewal Term.
3.3. The licence granted by the Supplier to the Customer under Clause 3.2 is subject to the following limitations, namely (a) the Platform may only be used by the named users identified in the Services Agreement, provided that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; (b) the Platform must not be used at any point in time by more than the number of named users specified in the Services Agreement, provided that the Customer may add or remove concurrent user licences in by notification to the Supplier.
3.4. Except to the extent mandated by applicable law or expressly permitted in the Services Agreement, the licence granted by the Supplier to the Customer under this Clause 3 is subject to the following prohibitions, namely (a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform; (b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and (c) the Customer must not alter or adapt or edit the Platform.
3.5. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Initial Term or any Renewal Term.
3.6. All IPR in the Platform shall, as between the parties, be the exclusive property of the Supplier.
3.7. The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8. The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9. The Customer must not use the Platform: (a) in any way that is unlawful, illegal, fraudulent or harmful or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. Permitted Use

4.1. The Customer may use the Software only on the Equipment within the US, UK, the EU and/or the Channels Islands. The use of the Software on different equipment or outwith the above areas requires the prior written consent of the Supplier and may incur a change in the Charges.
4.2. The Customer shall not:

4.2.1. use or attempt to use the Licenced Materials or any of the Software’s output to, or permit any third party to, provide a data processing service to any third party;
4.2.2. translate or adapt the Licenced Materials for any purpose nor arrange or create derivative works based on the Licenced Materials;
4.2.3. transfer or distribute (whether by licence, sub-licence, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber the Licenced Materials or permit the use of the Licence Materials by any other person or any third party or make available the same to any third party;
4.2.4. make, or permit any third party to make for any purpose (including without limitation for error correction), any alterations, copying, modifications, additions or enhancements to the Software and take steps to prevent the same;
4.2.5. permit any third party to alter, adapt, make error corrections to, decompile, reverse engineer or disassemble the Software or any part of it or permit the Software to be combined with any other programs.

4.3. The Customer shall follow all lawful and reasonable instructions and directions given by the Supplier from time to time in relation to the use of the Licenced Materials.
4.4. The Customer shall permit the Supplier, or its agents, on reasonable prior notice, to inspect and have access to any Equipment on which the Software operates and any records kept pursuant to this Agreement, to verify that the use of the Software by the Customer is in accordance with the terms of this Agreement. The Supplier may require the Customer to operate and run a tool or programme provided by the Supplier on the Equipment in order to verify that the use of the Software complies with the terms of this Agreement.
4.5. The Customer shall use appropriate hardware and software to operate the Software in accordance with the Specification.
4.6. The Customer may not use the Software other than as specified in this Agreement.
4.7. The Customer shall ensure compliance with the terms of this Agreement by all of its employees, contractors and sub-contractors.
4.8. The Customer shall ensure that the number of persons using the Software does not exceed the number of Licenced Users.
4.9. The Customer shall ensure that the Software is installed only on the Equipment.
4.10. If the Charges contain or reflect any discount or reduction of the Charges by reason of the Customer agreeing to participate in the Supplier’s marketing efforts, the Customer shall ensure that it so participates in accordance with the Supplier’s reasonable requirements.

5. Extent of permitted reproduction of Premise Software

5.1. The Customer is permitted to make one back-up copy of the Premise Software for its lawful use. The Customer shall record the location of that copy of the Software and shall use all reasonable endeavours to prevent unauthorised copying or use of the Software.
5.2. The Customer may only use a back-up copy of the Software by substituting it for the copy the Customer is using.
5.3. The Customer undertakes to effect and maintain adequate security measures and maintain accurate and up-to-date records of the number and location of all copies of the Software or the Licenced Materials and upon prior written notice forthwith shall produce such record to the Supplier, and to supervise and control use of the Software in accordance with this Agreement.

6. Proprietary rights

6.1. The Customer acknowledges that all IPRs in the Licenced Materials and Maintenance Releases and rights in any copies of them shall belong to the Supplier and the Customer shall have no rights, title or interest in or to any of them except the right, as expressly granted under this Agreement, to use them in accordance with this Agreement. The Customer shall do or procure to be done all such further acts and things and shall execute or procure the execution of all such other documents as the Supplier may from time to time require for the purpose of giving the Supplier the full benefit of the provisions of this clause.
6.2. The Customer shall notify the Supplier immediately if the Customer becomes aware of any unauthorised access to, use, copying or disclosure of, any part of the Licenced Materials by any person.
6.3. Nothing in this Agreement shall give to the Customer or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6.4. The Customer shall not decompile, reverse engineer, disassemble or attempt to derive the Source Code of the Software, save only to the extent permitted by law.

7. Support

7.1. In consideration of the Customer making payment of the Licence Fees and the Charges and the performance by the Customer of all other obligations pursuant to this Agreement, the Supplier agrees to provide the Support in accordance with the terms of this Agreement.
7.2. Maintenance Releases or details of such releases may be issued at the Supplier’s discretion.
7.3. Support covers assistance in relation to significant operational errors that make the program set of the Software unusable when operated in conformity with the Specification, any online user instructions in any help function in the Software. Such errors shall be notified by the Customer to the Supplier’s customer support department in the manner specified on the Website. The Supplier will use reasonable endeavours to attempt to correct errors or assist the Customer to avoid errors or, at the Supplier’s sole option, pursue other means toward a mutually satisfactory solution.
7.4. The Support will be provided during the hours of 9.00am to 5.00pm Monday to Friday GMT, excluding public holidays and where applicable and any other date where the Supplier’s business is closed, details of which will be published on the Website.
7.5. The provision of any Support outside the Standard Support Hours is at the Supplier’s sole discretion. Charges in respect of all time spent in providing any Support outside the Standard Support Hours will be invoiced to the Customer at the Supplier’s discretion at its then current rates.
7.6. The Supplier will use reasonable endeavours to provide the Support promptly having regard to the availability of personnel, necessary supplies and facilities.
7.7. If the Customer makes unreasonable, excessive or inappropriate use of the Support, then the Supplier may at its sole discretion either suspend the Support or charge additional charges in respect of time spent supplying such Support at the then current rates.
7.8. The Support is provided to the Customer as part of the supply of the Licenced Materials. Support is charged as part of the Licence Fees.

8. Customer Obligations

8.1. The Customer undertakes to:

8.1.1. satisfy itself that the Software meets the needs of the Customer’s business. It is the Customer’s sole responsibility to determine that the Software is ready for operational use in the Customer’s business before the Software is accessed online by live business users.
8.1.2. allow the Software to transmit data to the Supplier, at any time, to enable the Supplier to check whether the Customer is using a Current Release or enable the Supplier to prompt the Customer when a Current Release is available.
8.1.3 ensure that it complies fully with any and all legislation or other provisions having force in law in relation to the Customer’s use and operation of the Software on the Equipment and the Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of this Clause 8.1.3.

8.2. In relation to the Services, the Customer shall:

8.2.1. use all reasonable endeavours to ensure that the Current Release and the Equipment are used in a proper manner by competent trained employees only or by persons adequately trained under the Customer’s supervision;
8.2.2. ensure that each Maintenance Release or Current Release the Supplier issues to the Customer is installed and implemented as soon as is reasonably possible and, in any event, not later than one (1) month from the Customer being informed that a Maintenance Release or Current Release is available;
8.2.3. notify the Supplier promptly by notice in writing if the Software is not operating correctly or of any other problem with the Software;
8.2.4. co-operate with the Supplier’s staff as reasonably required to enable the Supplier to perform the Support and Services and provide facilities for remote testing and diagnostic purposes;
8.2.5. provide the Supplier’s staff with access to the Equipment during the Standard Support Hours and at such other times as the Supplier may request on reasonable prior notice or as may otherwise be expressly agreed with the parties;

8.3. The Supplier reserves the right to refuse to provide any Support and/or Services to the Customer, if in the Supplier’s sole opinion, the Customer is not compliant or the Supplier anticipates non-compliance with any provision of this Agreement.
8.4. If the Supplier is delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of its obligations under this Agreement as a result of the Customer’s acts or failure to act or omissions (including the provision of any incorrect or inadequate data or delay or failure to provide information or instructions or perform the Customer obligations under this Agreement), then the Customer shall pay to the Supplier any additional reasonable costs and expenses incurred by the Supplier.

9. Payment Terms

9.1. The Customer agrees to pay the Charges annually (as specified) in advance throughout the Term of the Agreement, unless specified otherwise in the Services Agreement.
9.2. The Customer’s access to the Software may be suspended until the Supplier has received any payment that is due in full and in cleared funds in accordance with this Agreement.
9.3. If any payment due under this Agreement or any other Agreement between the parties is in arrears, the Supplier reserves the right without prejudice to any other right or remedy to:

9.3.1. suspend or terminate the provision of any Support and/or Services under this Agreement until any outstanding payment is both received and cleared on the overdue amount; and/or
9.3.2. limit any access to the Software until any outstanding payment is both received and cleared on the overdue amount; and/or
9.3.3. terminate this Agreement pursuant to clause 12.

10. Warranty

10.1. The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 90 days from the date of the Installation Date (Warranty Period). If within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from (i) the Customer, or anyone acting with the authority of the Customer, having amended the software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier or (ii) the loading of the Software on to equipment which has not been specified by the Supplier or suitably configured, the Supplier shall at the Supplier’s option do one of the following:-

10.1.1. repair the Software;
10.1.2. replace the Software; or
10.1.3. terminate this Agreement with immediate effect by providing written notice to the Customer, in which case the Supplier shall refund any Charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of the defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

10.2. The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
10.3. The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
10.4. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Supplier gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
10.5. The Customer acknowledges that complex software is never entirely free from security vulnerabilities and subject to the other provisions of this Agreement, the Supplier gives no warranty or representation that the Software will be entirely secure.
10.6. All other conditions, warranties or other terms which might have effect between the parties or implied or incorporated into this Agreement or any collateral contract whether by statute, common law, or otherwise are hereby excluded including implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose or the use of reasonable skill and care.

11. Liability

11.1 Except as expressly stated in clause 11.4, the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, delict (including negligence) or otherwise howsoever, which fall within any of the following categories: (i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise; (ii) loss of profits; (iii)loss of anticipated savings; (iv) loss of business opportunity; (v)loss of goodwill; (vi) loss or corruption of data; or (vii) losses arising out of a force majeure event.
11.2 the total liability of the Supplier, whether in contract, delict (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Charges up to a maximum of an amount equal to the (i) Charges paid for the first 6 months of the Agreement or (ii) if the Agreement has not been in existence for 6 months, the Charges paid.
11.3 the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.
11.4 The exclusions in clauses 10.6 and 11.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for (i) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents or (ii) any other liability which may not be excluded by law.

12. Term & Termination

12.1. This Agreement will commence on the Commencement Date and will continue for the Initial Term and, unless terminated earlier in accordance with this Agreement, shall automatically renew on expiry of the Initial Term for subsequent periods of three (3) years (“Renewal Term”) and the terms of this Agreement will continue to apply.
12.2. Without affecting any other right or remedy available to the Supplier, the Supplier reserves the right to terminate the Agreement at any time without refunding the Charges paid by the Customer, if the Customer has failed to pay or otherwise in accordance with this Agreement and where such sum remains unpaid for 14 days from the due date or where, in the Supplier’s reasonable opinion, the Customer’s system and/or the Equipment has ceased to be capable of running the Software successfully for any reason.
12.3. The Customer may terminate this Agreement by giving not less than ninety (90) days prior written notice by post to take effect before the expiry of the Initial Term or any Renewal Term, but will not be entitled to any refund of any Charges paid under this Agreement. In the absence of such notice this Agreement will automatically renew on expiry of the Initial Term or Renewal Term as described in clause 12.1.
12.4. Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if the other:

12.4.1. is in material breach of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy the breach within thirty (30) days of receipt of written notice setting out the breach and indicating that failure to remedy the breach may result in termination of this Agreement;
12.4.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
12.4.3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.4.4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.4.5. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
12.4.6. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.4.7. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
12.4.8. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
12.4.9. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.4.2 to clause 12.4.8 (inclusive); or
12.4.10. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
12.4.11. (in the case of an individual) has been sequestrated, enters in to an individual voluntary arrangement or signs a trust deed for creditors;

12.5. Termination of the Licence, howsoever caused, shall not affect the rights of either party under this Agreement which may have accrued up to the date of termination.
12.6. On termination of this Agreement the Licence shall terminate and accordingly the Customer’s right to use the Licenced Materials will automatically cease and at the Supplier’s option, the Customer shall either be required to return all copies of them or, delete, destroy or otherwise make permanently unusable the Licenced Materials and certify to the Supplier in writing that this has been done within fourteen (14) days of the date of termination.
12.7. On expiry or earlier termination of this Agreement, the Customer’s right to use the Software will cease and the Customer will be given notice of the date that access to the Software will be removed without further warning.

13. Force majeure

No party shall be liable to the other for any delay or non-¬performance of its obligations under this Agreement arising from any cause beyond its control. For the avoidance of doubt, nothing in this clause 13 shall excuse the Customer from any payment obligations under this Agreement. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate this Agreement forthwith by prior written notice without prejudice to the accrued rights of either party.

14. Assignation

The Supplier may assign, sub-contract or otherwise transfer any of its rights and obligations under this Agreement without the Customer consent. The Customer may not assign, sub-contract or otherwise transfer any of its rights and obligations under the Agreement without the prior written consent of the Supplier.

15. Notices

15.1. Any notice required to be given pursuant to this Agreement shall, unless otherwise stated, be in writing, sent to the other party marked for the attention of the person at the address specified in this Agreement (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause).
15.2. For the purpose of notices to be given by the Supplier in writing, the expression “writing” or “written” shall be deemed to include email communications or facsimile transmissions. At the Supplier’s option, the Supplier may send notices to the Customer’s facsimile number or email address specified in Services Agreement.
15.3. A correctly addressed notice sent by first class post shall be deemed to have been delivered 72 hours after posting, correctly directed faxes shall be deemed to have been received instantaneously on transmission, and correctly addressed emails shall be deemed to have been delivered 24 hours after sending.

16. Severability

If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

17. Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

18. Entire Agreement

18.1. This Agreement and any document expressly incorporated in it contains the entire and only agreement between the parties and supersedes all previous agreements between the parties.
18.2. The Customer will be notified of any changes to this Agreement on the Website. Changes to the Agreement will take effect from the date of commencement of the Renewal Term or if sooner after thirty (30) days of notice being given to the Customer pursuant to this clause.

19. Third party rights

A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) (Scotland) Act 2017 to enforce any term of this Agreement.

20. Data Protection

20.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 20, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
20.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
20.3. Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

21. Confidentiality

21.1. Both the Customer and the Supplier agree not to use or disclose confidential information relating to or owned by the other, or received or disclosed to it by the other party during the term of this Agreement, save for any use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure shall be limited to such of the receiving party’s employees, officers, agents or contractors directly involved in performing the receiving party’s obligations. The Customer hereby consents to the Supplier making reference to and expressly including the Customer’s name, trademark, trade dress and logo as a customer of the Supplier and user of the Software during the term of the Agreement in all of the Supplier’s publicity materials and Website.
21.2. The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal, court of competent jurisdiction or any governmental or regulatory authority requirement, or is independently.

22. Governing law and Jurisdiction

This Agreement shall be construed in accordance with and governed by the law of Scotland. Both parties irrevocably agree that the courts of Scotland 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.

23. Marketing and use of Customer Name

The Customer will participate in a success story and/or video case study for the Supplier, plus allow use of logo (with prior consent) for Marketing purposes on website and marketing materials, as well as act as a customer reference for the Supplier on an agreed basis per annum.

24. Indemnification

24.1 The Supplier shall indemnify and hold harmless the Customer from any claim, suit, or proceeding alleging that any Software, apart from the Content, infringes any Third Party Intellectual Property Rights and shall pay any liabilities, damages, costs, and expenses finally awarded therein or paid in settlement. The Supplier shall be relieved of this obligation unless:

24.1.1 The Customer promptly notifies the Supplier of any such claim, suit or proceeding;
24.1.2 The Supplier has sole control of the defence and all related settlement negotiations; and
24.1.3 The Customer provides the Supplier with all assistance, information, and authority reasonably necessary to enable the Supplier to perform the above.

24.2 Except to the extent the Supplier is responsible for a claim under clause 24.1.1 the Customer shall indemnify, hold harmless, and, at the Supplier’s request, defend the Supplier from and against any and all claims, losses, liabilities, damages, and expenses (including reasonable legal fees and expenses) arising out of or in connection with the Supplier’s use of the Software, to the extent that such claim or liability arose from the act or omission of the Customer otherwise than in accordance with the terms of this agreement or from a matter within the Customer’s area of control and responsibility or from the Customer’s breach of this agreement, including any claim that Content infringes Third Party Intellectual Property Rights.