1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer's Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A.
2.1. Customer represents and warrants that it will not:
2.2. Customer represents, covenants, and warrants that it will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
3.1. The Company acknowledges that the Customer (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer Data"). The Company agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the "Fees"). If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to revise the Fees or applicable charges at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.2. All Fees are payable in advance and are due on the first day of each Billing Period. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than UK taxes based on Company's net income.
5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of one (1) month (collectively, the "Term"), unless either party requests termination of the Agreement at least seven (7) days prior to the end of the then-current term. The Company reserves the right to terminate the Agreement without notice in case of nonpayment by the Customer of the Fees within 60 days following the issue of the invoice.
5.2. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. After such period, Company shall delete all stored Customer Data unless Company is required by applicable law to retain some or all of the Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this section, the Services are provided "as is" and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
7.1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United Kingdom patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a licence to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8.1. Notwithstanding anything to the contrary, Company and its officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Company's reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Customer to Company for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages.
9.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of England and Wales. Customer grants Company the right to use Customer's name and logo on Company's website and in marketing materials to identify Customer as a user of the Services; Customer may revoke this right at any time upon written notice. Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm GMT, with the exclusion of UK Bank Holidays ("Support Hours").
Customer may initiate a helpdesk ticket during Support Hours or any time by emailing support@velarihq.com.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
This Data Processing Addendum ("DPA") forms part of the Agreement and sets out the terms that apply when Company processes Personal Data on behalf of Customer in connection with the Services.
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data, including the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018, and any successor legislation.
"Personal Data", "Data Subject", "Controller", "Processor", "Processing" and "Personal Data Breach" have the meanings given to them in Data Protection Laws.
"Sub-processor" means any Processor engaged by Company to process Personal Data on behalf of Customer.
The parties acknowledge that, with respect to Personal Data contained within Customer Data, Customer is the Controller and Company is the Processor. Company shall process Personal Data only to the extent necessary to provide the Services in accordance with Customer's documented instructions, unless required to do so by applicable law, in which case Company shall (to the extent permitted by law) inform Customer of that legal requirement before processing.
Company shall implement and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm that might result from such events, the nature of the Personal Data, and shall comply with the requirements of Data Protection Laws. Such measures shall include, as appropriate: (a) encryption of Personal Data in transit and at rest; (b) measures to ensure ongoing confidentiality, integrity, availability and resilience of processing systems; (c) measures to restore availability and access to Personal Data in a timely manner following an incident; (d) regular testing and evaluation of the effectiveness of security measures; and (e) measures to ensure that personnel authorised to process Personal Data are subject to appropriate confidentiality obligations.
Company shall notify Customer without undue delay (and in any event within 72 hours) after becoming aware of a Personal Data Breach affecting Customer Data. Such notification shall include: (a) a description of the nature of the breach, including the categories and approximate number of Data Subjects and Personal Data records concerned; (b) the name and contact details of Company's point of contact; (c) a description of the likely consequences of the breach; and (d) a description of the measures taken or proposed to address the breach, including measures to mitigate its possible adverse effects. Company shall cooperate with Customer and take such reasonable steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Customer provides general authorisation for Company to engage Sub-processors to process Personal Data, subject to the following conditions: (a) Company shall maintain a list of Sub-processors, which shall be made available to Customer upon request; (b) Company shall notify Customer at least 30 days in advance of any intended addition or replacement of Sub-processors, and Customer may object to such changes on reasonable grounds related to data protection within 14 days of notification; (c) if Customer objects and the parties cannot resolve the objection within a reasonable period, Customer may terminate the affected Services without penalty; and (d) Company shall ensure that each Sub-processor is bound by data protection obligations no less protective than those set out in this DPA.
Company shall not transfer Personal Data to any country outside the United Kingdom unless: (a) the transfer is to a country that has been deemed to provide an adequate level of protection by the UK Secretary of State; (b) appropriate safeguards are in place, such as the International Data Transfer Agreement or the UK Addendum to the EU Standard Contractual Clauses; or (c) another lawful transfer mechanism under Data Protection Laws applies. Upon Customer's request, Company shall provide details of the transfer mechanisms relied upon for any international transfers.
Company shall, taking into account the nature of the processing, assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer's obligation to respond to requests from Data Subjects exercising their rights under Data Protection Laws. If Company receives a request from a Data Subject in relation to Customer Data, Company shall promptly notify Customer and shall not respond to such request except on Customer's documented instructions or as required by applicable law.
Upon termination or expiry of the Agreement, Company shall, at Customer's election, return or delete all Personal Data (including copies) in its possession or control, except to the extent that Company is required by applicable law to retain some or all of the Personal Data. Company shall certify in writing to Customer that it has complied with this requirement within 30 days of Customer's request.