In this agreement We/we and You/you shall be “Party” and collectively “Parties”. We/we, You/you, our and your shall be construed accordingly.
Addendum means a document signed by the Parties, under which we amend aspects of this Agreement. Any Addendum shall be coterminous with and subject to the provisions of this Agreement;
Affiliates means in relation to any company: (a) any subsidiary or holding company of such company or any subsidiary of such holding company; or (b) any other entity controlling or controlled by such company;
Effective Date means the earlier of the effective date specified in your Order Form or first access to the Service;
Fees means the amounts payable by you as specified in your Order Form (and any Addendum);
Initial Term has the meaning given to it in your Order Form;
Intellectual Property means patents, trade marks, service marks, trade names (including internet domain names and e-mail address names), copyrights, authors rights, moral rights, know-how, rights in look and feel, database rights, rights in designs and inventions and all or any similar or equivalent rights arising or subsisting in any jurisdiction, whether or not any of the foregoing are registered, including without limitation the right to apply for registrations, renewals or extensions in respect of any of the foregoing;
Locations means the locations specified in your Order Form (or any Addendum) at which Users shall be entitled to use the Service;
Service or Services means the service or services set out in the Schedule which we make available to you;
Order Form means a document signed by you under which you order the Services;
Renewal Period means each subsequent period after the Initial Term, being in each case the same length of time as the Initial Term;
Term means the Initial Term and any subsequentUser(s) means you and/or those of your individual employees, agents or contractors who have been authorised to access the Services;
User(s) means you and/or those of your individual employees, agents or contractors who have been authorised to access the Services;
User Conditions means the terms and conditions which each User must strictly observe when accessing any of the Services.
You means any natural person or legal entity specified on the Order Form subscribing to the Service provided under this Agreement on behalf of itself and/or the Users and ‘your’ shall be construed accordingly.
2. Grant of Rights
(a) In consideration of the payment of the Fees by you, we grant to you a non-exclusive, non-transferable right to access and use the Services solely for your internal business purposes for the duration of the Term, subject always to the limitations set out in this Agreement.
(b) You acknowledge and agree that you shall use (and shall ensure that Users use) the Services only in accordance with the terms of this Agreement and all applicable laws and regulations.
3. Extent of Rights
(a) The rights granted to you to the Services is for use by your Users only.
You shall be required to provide us with a list of the individuals you wish to designate as Users. This information shall comprise the following: name; current working location and e-mail address (“Registration Information”). Prior to providing such Registration Information, you shall ensure that you have obtained such consents from the designated Users as are necessary to ensure compliance with applicable data protection legislation. You shall ensure that the Registration Information in respect of each User is updated at appropriate times throughout the Term.
5. Restrictions on Use
Except as specifically authorised by us, you shall not do the following and shall procure that Users do not do the following:
(i) directly or indirectly grant anyone that is not a designated User access to the Services;
(iii) modify or attempt to modify any part of the Services;
(iv) decompile, investigate, interrogate, copy, reverse engineer or otherwise interfere with or gain further access to any software used in the provision of the Services; and
(v) create a service or any product that competes with any of the Services.
6. User Conditions.
You shall pay the Fees set out in your Order Form (and any Addendum). All amounts due from you under this Agreement are payable in advance and payable thirty (30) calendar days from the date of a corresponding invoice and are exclusive of any sales, value added or other taxes or duties which, if payable, shall be paid by you. All payments shall be made by cheque or bank transfer to an account nominated by us. If after 10 days of our notice to you, you still haven’t paid we reserve the right to suspend the Service until payment has been made in full. We reserve the right to charge you interest on the late payment of any sum due at a rate of 8% per annum above the Bank of England base rate (accruing on a monthly basis) until such outstanding sum is settled in full.
We warrant as follows:a) the Service connects to your security tools via API; we warrant that the Service will report the data into the dashboard accurately as long as the security tools’ APIs are functioning properly.b) the Service will comply in all material respects with the service description.We do not warrant that the Services will be uninterrupted or error free. Further, we do not warrant that any of the tools, applications or programs forming part of your security tools that were not supplied by us will operate in accordance with their respective service descriptions. Any claims in respect of any such tools, applications or programs should be made directly to the provider. In the event of a claim under the warranties, we shall have the option to either modify or replace the Service. In the event that we fail to modify or replace the Service within a reasonable period you shall be entitled to terminate the Agreement and we shall return any Fees paid by you in respect of any period of time during which the Service failed to meet warranties.
9. Limitation of Liability and Disclaimer of Other Warranties.
(a) The warranties given in clause 8 above represents the sole warranties given in respect of the Services and to the extent permitted by law, all other warranties (whether express or implied) in respect of the Services are hereby excluded. We hereby exclude any liability in respect of your reliance on any warranty other than as set out in clause 8 above.
(b) In no event shall we be liable for any loss of business, loss of data, loss of revenue, or any interruption to any of the above or for any indirect or consequential loss or loss of profit arising out of or in connection with this agreement or its termination, unless such loss, damage or cost results from the negligence, wilful default or fraud of ThreatAware.
(c) Save for the limit above, and save in respect of any liability for death or personal injury or in respect of any fraud, where our liability shall not be limited, our liability for all other claims under these terms or arising in connection with our agreement with you shall be limited to the fees paid by you in the 12 months immediately prior to the circumstances giving rise to the claim.
(a) By you: You agree to defend, indemnify and hold harmless us and our officers, directors, employees and agents from and against any liability, damage, loss or cost arising out of or related to any unauthorised use of the Service or breach of the provisions of this Agreement by you or any User. You shall have the reasonable right to control the defence and settlement of any such claim, lawsuit or proceeding provided that you shall not settle any claim or action in a manner that would impose any obligation on us without our prior written consent (which shall not be unreasonably withheld or delayed).
(b) By us: We agrees to defend, indemnify and hold harmless you and your officers, directors and Users from and against any liability, damage, loss or cost incurred by you or any User as a result of any third party claim or action that permitted use of the Services infringes that party’s Intellectual Property rights. We shall have the right to control the defence and settlement of any such claim, lawsuit or proceeding provided that we shall not settle any such claim, lawsuit or proceeding which would impose any obligation on you without your prior written consent (which shall not be unreasonably withheld or delayed). The foregoing states the entire liability to you or any other Indemnified Party with respect to Intellectual Property right infringement.
We shall provide the Services to you on and from the Effective Date specified on your Order Form until the end of the Initial Term.Thereafter (unless otherwise terminated in accordance with this Agreement), your subscription to the Services shall automatically continue in force for successive Renewal Periods unless written notice terminating this Agreement is given by either party not less than 1 month before the end of the Initial Term or any subsequent Renewal Period as applicable.
12. Termination of User Access Rights.
13. Termination of Agreement
(a) Either party may terminate this Agreement immediately in the event of a material breach by the other party if such breach remains uncured for a period of fifteen (15) calendar days following written notification to the party in breach. Notwithstanding the foregoing, we may terminate the Agreement immediately upon discovery of any wilful or reckless breach of the provisions of this Agreement. We also reserve the right to terminate this Agreement in the event that you(i) become insolvent; (ii) fail to pay your debts as they fall due; (iii) make a general assignment for the benefit of creditors; or (iv) you or any of the Users becomes subject to sanctions that would lawfully prevent you from receiving the Services.
(b) The rights and obligations under clauses 9, 10 and 14 together with any payments obligations accrued prior to expiration or termination, shall survive the termination or expiration of this Agreement.
(b) Confidentiality: Each party shall maintain the confidentiality of the other party’s proprietary information during the Term and for three (3) years after the date of the last disclosure. These confidentiality obligations shall not apply to information: (i) lawfully in the public domain; (ii) lawfully possessed by the recipient before disclosure by the other party; (iii) lawfully disclosed to a party by a third party without obligation of confidentiality;(iv) independently developed by a party without reference to the other party’s proprietary information; or (v) whose disclosure is compelled by a court or other competent authority (provided in such case that the compelled party makes reasonable efforts to help the disclosing party oppose or limit such compelled disclosure).
(d) Severability: If any provision in this Agreement is held to be invalid or unenforceable, it shall be reconstrued to reflect as closely as possible, its original intention, but all the remaining provisions shall remain in full force and effect.
(e) Assignment: Neither party may assign, transfer, declare a trust over the benefit of or otherwise dispose of this Agreement without the other party’s written consent, which shall not be unreasonably withheld or delayed, except that we may assign this Agreement to any Affiliate or successor in interest, or in connection with a merger, consolidation, sale of all or substantially all of its assets, change of name or like event.
(f) Amendments; Waiver: Save as expressly provided herein, amendments to this Agreement must be in writing in the form of an Addendum and signed by authorised representatives of both parties. Neither course of conduct nor trade practice shall be taken to modify any provision of this Agreement. Any failure to enforce strict performance of any provision of this Agreement shall not prevent us from subsequently doing so. No provision of this Agreement may be waived except in writing signed by the party against whom enforcement of the waiver is sought.
(h) Force Majeure: We shall not be in breach of this Agreement or otherwise liable to you for any delay in performance or non-performance under this Agreement if such delay is due to any event or circumstance beyond its reasonable control including acts of God or nature, failure or shortage of power supplies, acts or omissions of government or other authorities or any telecommunications carrier, operator or administration or Internet service provider, war, act of terrorism, riot, trade dispute, lock-out or labour disturbance (each a “Force Majeure Event”). If any Force Majeure Event continues for a period of one calendar month, then either party may terminate this Agreement with immediate effect.
(i) Equitable Relief: Both parties agree that monetary damages alone might not be a sufficient remedy for any breach of this Agreement and acknowledge that an aggrieved party shall be entitled to seek injunctive relief as a remedy for any breach. Such remedy will not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other remedies available at law or in equity to the aggrieved party.
(j) Notices: Each party may communicate with each other and send notices under this Agreement to the other party in the normal course of business using the address details specified in your Order Form (including, for the avoidance of doubt, any email address specified). Any communication or notice under clause 14 shall be in writing and shall be sent by email, delivered personally or sent by pre-paid first class post (air mail if posted to or from a place outside the United Kingdom), or by signed for courier to the company secretary of the recipient of the communication or notice.
(k) Applicable Law; Venue: This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) are governed by and construed in accordance with, the law of England. The parties irrevocably agree that English courts have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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