Vue Terms and conditions
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Affiliate: in respect of a party to this agreement, any legal entity which controls, is controlled by or is under common control with that party, where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010;
Authorised Customer Brand(s): the Customer and/or the Affiliates of the Customer and/or the trading divisions or brands of the Customer which are named as Authorised Customer Brands on the Order Form;
Authorised Users: those officers, employees, agents and independent contractors of each Authorised Customer Brand who are authorised by the Customer or Authorised Customer Brand (as the case may be) to use the Services and the Dashboard Content;
BrandVue Dashboard Content: the content made available to the Authorised Customer Brand(s) via the BrandVue platform.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Confidential Information: means all information (however recorded or preserved) disclosed by or on behalf of one party to the other party in connection with this agreement which is marked as being confidential, which the receiving party knows or reasonably ought to know is confidential, or which is of its nature confidential;
Customer: the person or company which is named on the Order Form;
Customer Data: information uploaded to the Dashboard by or on behalf of the Authorised Customer Brand(s), which, where the Customer receives access to the MyVue platform, may include MyVue Dashboard Content;
Dashboard: the MyVue and/or BrandVue platform (as may be specified in the relevant Order Form) developed and operated by Morar HPI at such web address(es) notified by Morar HPI to the Authorised Customer Brand(s) from time to time;
Dashboard Content: (a) where the Customer receives access to the BrandVue platform, the BrandVue Dashboard Content and/or; (b) where the Customer receives access to the MyVue platform, the MyVue Dashboard Content;
Data Protection Legislation:
(a) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
(b) any successor legislation to the GDPR or the Data Protection Act 1998.
Documentation: any user documentation for the Subscription Service, as may be notified by Morar HPI to the Customer and as may be updated by Morar HPI from time to time;
Fee: any amount payable to Morar HPI by the Customer as detailed in the Order Form and including the Licence Fee;
Initial Licence Term: the initial term of the Subscription Service beginning on the Subscription Start Date as set out in the Order Form;
Licence Fees: the fees payable by the Customer to Morar HPI for the Subscription Service, as detailed in the Order Form;
Licence Term: is the Initial Licence Term together with any subsequent Renewal Periods agreed between the parties;
Malware: a computer program (in any form) or a device, which is designed to cause, or is deployed for the purpose of causing, or actually has the effect of causing, damage or mischief to any computer or its owner or operator or any third party, or to suborn or bypass its security, or to retard or degrade its performance, or to facilitate criminal acts or acts of industrial espionage, digital vandalism or “hacktivism”;
Morar HPI: MIG Global Limited, a company incorporated and registered in Scotland with company number SC281352 whose registered office is at Biteda Limited, 111 Bell Street, Glasgow, G4 0TQ trading as “Morar HPI”;
MyVue Dashboard Content: the content specifically created or collected by Morar HPI on behalf of the Customer for the purposes of making available to the Authorised Customer Brand via the MyVue platform (including any materials adapted, modified or derived from the Customer Data).
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day;
Order Form: means the BrandVue and/or MyVue order form(s) incorporating these terms;
Renewal Period: unless otherwise stated in the Order Form, the period of 12 months commencing on (i) the expiry of the Initial Licence Term and (ii) each anniversary of the expiry of the Initial Licence Term;
Services: the Subscription Services and/or any other services further detailed in the Order Form;
Special Terms: any special terms specified as such in the Order Form;
Subscription Service: the subscription to the applicable Dashboard provided by Morar HPI to the Authorised Customer Brand(s) which allows the Authorised Customer Brand(s) to access the applicable Dashboard Content, as may be specified in the Order Form and more particularly described in the Documentation;
Subscription Start Date: the start date of the Subscription Services as set out in the Order Form;
Support Services: access to the VueTech Support team in accordance with the level of support for the Subscription Services as specified in the Order Form;
Third Party IP Claim: has the meaning given to it in clause 14.2; and
Use: (i) in respect of the Dashboard, only those acts of connecting to it, logging in to it, accessing it and interacting with it as are consistent with its ordinary intended usage as may be described in the Documentation; (ii) in respect of the BrandVue Dashboard Content, the permitted uses set out at clause 4, subject to the restrictions set out at clause 5; and (iii) in respect of the MyVue Dashboard Content, those acts of interacting with it as are consistent with its ordinary intended usage.
1.2 Except as otherwise expressly provided herein or unless the context otherwise requires, to the extent that the Authorised Customer Entity is a different legal entity to the Customer, all references to “Customer” shall (a) be to the Authorised Customer Entity; and (b) include the Customer procuring the same from the Authorised Customer Entity.
1.3 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
2.1 Morar HPI shall provide the Services to the relevant Authorised Customer Brand(s) on and subject to the terms of this agreement.
3. Subscription services
3.1 Morar HPI hereby grants to the Authorised Customer Brands a non-exclusive, non-transferable, revocable right to permit the Authorised Users to Use the Dashboard and to receive access to the Dashboard Content from the Subscription Start Date during the Licence Term.
3.2 Morar HPI reserves the right to use appropriate technical protection measures to control access and/or to detect unauthorised use of the Dashboard Content in accordance with this Agreement provided that no such measure shall adversely affect the rights of the Customer, the Authorised Customer Brand(s) or their Authorised Users under this Agreement.
3.3 The Customer will procure that each Authorised User shall select a secure password for his use of the Dashboard and that each Authorised User shall keep his password secret and treat it as the Confidential Information of Morar HPI;
3.4 The Customer shall not, and shall procure that no Authorised Customer Brand or Authorised User will during the course of its use of the Dashboard, access, store, distribute or transmit any:
(a) Malware; or
(b) any material:
(i) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, discriminatory or racially or ethnically offensive;
(ii) that facilitates illegal activity;
(iii) that depicts sexually explicit images;
(iv) that promotes unlawful violence; or
(v) in a manner that is otherwise illegal or causes damage or injury to any person or property, and Morar HPI reserves the right, without liability or prejudice to its other rights, to immediately suspend or terminate the Customer's and/or any or all of the Authorised Customer Brand(s) and Authorised Users’ right to receive the Services if the Customer breaches the provisions of this clause 3.4
3.5 As a particular condition of Use to the Subscription Services, the Customer shall not and shall not attempt to (and shall procure that no Authorised Customer Brand or Authorised User shall and shall not attempt to):
(a) except to the extent expressly permitted by this agreement or any applicable law which is incapable of exclusion by agreement between the parties (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Dashboard (including all or any portion of the software that operates the Dashboard) and/or the BrandVue Dashboard Content (other than as permitted under clauses 4 and 5) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software that operates the Dashboard, including its associated configurations, file formats and data structures; or
(b) access all or any part of the Dashboard, the Documentation and/or Dashboard Content in order to build a product or service which competes with the Services; or
(c) resell access to the Dashboard or the Dashboard Content, or use the Dashboard and/or Dashboard Content (other than any Customer Data) in any provision of services to third parties by way of an outsourced service, service bureau or similar arrangement; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Dashboard and/or Dashboard Content (other than any Customer Data) available to any third party except the Authorised Users, or
(e) obtain, or assist third parties in obtaining, access to the Dashboard and/or Dashboard Content (other than any Customer Data), other than to Authorised Users.
3.6 The Customer shall, and shall procure that each relevant Authorised Customer Brand shall, use all reasonable endeavours to prevent any unauthorised access to, or Use of, the Dashboard and/or the Dashboard Content and, in the event of any such unauthorised access or use, promptly notify Morar HPI.
3.7 Morar HPI shall use reasonable endeavours to make the Subscription Service available for Use in accordance with this agreement, subject to:
(a) planned maintenance which Morar HPI may carry out outside of Normal Business Hours; and
(b) unscheduled maintenance, provided in both cases that where possible Morar HPI has used reasonable endeavours to give the Customer reasonable notice in advance of such maintenance. The Customer’s sole and exclusive remedy in respect of this clause 3.7 shall be to receive the Support Services.
3.8 Morar HPI:
(a) does not warrant that the Customer's use of the Subscription Service will be uninterrupted or error-free; or that the Subscription Service and/or Dashboard Content will meet the Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities outside of its reasonable ability to control, including the Internet, and the Customer acknowledges that the Subscription Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.9 The Customer acknowledges and agrees that it is inherent to the nature of the Subscription Services that the particular range of Dashboard Content available to the Authorised Customer Brand(s) during the Licence Term may vary from time to time and Morar HPI reserves the right to make changes from time to time to all or any parts of the Dashboard Content and/or the Services for any reason provided that the functionality and performance of the Service, and the overall content of the Dashboard Content, shall not be substantially and adversely affected from the Subscriber’s perspective by any such changes. The changes referred to in this clause may take the form of the addition, removal, correction or editing of the Dashboard Content or other content, the migration of the Dashboard Content or the Service to a different format or location and/or changes to the tools or other features and functionalities of the Service. The availability or not of a particular range of Dashboard Content will not be a breach of this agreement by Morar HPI.
4. Use of the brandvue dashboard content
4.1 Where the Subscription Services includes access to the BrandVue Dashboard Content, Morar HPI hereby permits Authorised Users to use the Brandvue Dashboard Content during the Licence Term in accordance with the permitted uses set out in clause 4.2, subject to the restrictions on use set out in clause 5.
4.2 Each Authorised User may use the BrandVue platform during the Licence Term for the following purposes in connection with the Authorised Customer Brand(s)’s business and in the following ways:
Viewing and reproducing the BrandVue Dashboard Content for internal purposes within the Authorised Customer Brand(s)
(a) To browse and search the BrandVue platform and to display the BrandVue Dashboard Content on screen.
(b) To make and save to an electronic file digital copies extracted from the BrandVue Dashboard Content in any of the formats supported by the BrandVue platform and to access and retrieve such copies.
(c) To print out copies of the BrandVue Dashboard Content and to photocopy them for use in the course of performing his or her duties for the Authorised Customer Brand(s).
(d) To make the electronic and paper copies referred to in clauses 5.2.2 and 5.2.3 available to other Authorised Users.
(e) To create new documents, reports, presentations or other new materials written by Authorised Users in the course of performing his or her duties which incorporate limited extracts (“Limited Extracts”) from the BrandVue Dashboard Content (“New Materials”) and to share those materials in accordance with clause 4.2(f) below.
Internal and External Sharing of the BrandVue Dashboard Content in New Materials
(f) To share New Materials with:
(i) other Authorised Users for use internally within the relevant Authorised Customer Brand only (“Internal Sharing”); and
(ii) third parties for use by those parties only in the course of their business (“External Sharing”). External Sharing is only permitted by Authorised Users if they comply with all of the following conditions:
(A) the quantitative amount of any Limited Extracts reproduced in any New Material that is distributed to a third party does not exceed ten (10)% of the total quantity of that New Material. Morar HPI may consent to the Customer’s written request to increase this percentage for a specific purpose (such consent to be notified in writing and not to be unreasonably withheld); and
(B) any Limited Extracts are accurately reproduced in the New Material, and any conclusions which appear in the New Material and which are based on or refer to such extracts, are accurate, fair and reasonable; and
(C) New Materials are not used in a way that could reasonably be viewed as competitive with Morar HPI or substitutable for its products or services; and
(D) Morar HPI’s prior written consent has been obtained by the Customer for any External Sharing which relates to any of the purposes listed under clause 5.2.
(g) To create “Derived Data” which means data produced as a result of combining, processing, changing, converting or calculating part or all of the BrandVue Dashboard Content with other data (whether relating to or owned by the Customer and/or any third party) and:
(i) which is not intended (and cannot be readily employed) as a substitute for the underlying BrandVue Dashboard Content;
(ii) which cannot be readily reverse engineered, disassembled or decompiled such that a third party may access the BrandVue Dashboard Content via the Derived Data; and/or
(iii) in which the underlying BrandVue Dashboard Content does not form a substantial part.
(h) All New Materials containing extracts of the BrandVue Dashboard Content, whether created for Internal Sharing or External Sharing, shall attribute the Limited Extracts to Morar HPI in the following form: “Source: MIG Global Limited [insert year of creation] © All rights reserved”.
5. restrictions on use of BrandVue Dashboard Content
5.1 Any use of the BrandVue Dashboard Content beyond that specified in clause 4.2 (including any External Sharing and/or disclosure of BrandVue Dashboard Content for the purposes listed under clause 5.2) shall require Morar HPI’s prior written consent which may be subject to additional terms and/or charges as specified by Morar HPI at its sole discretion. In addition to the information required under such additional terms, any request by the Customer for Morar HPI’s consent under this clause 5.1 shall, at a minimum specify:
(i) details of the recipient(s) of the BrandVue Dashboard Content;
(ii) the BrandVue Dashboard Content the Customer wishes to disclose and the form in which it wishes to disclose it; and
(iii) the purposes for which those recipient(s) will use the BrandVue Dashboard Content, in each case whether the BrandVue Dashboard Content is incorporated in New Material(s) or otherwise.
5.2 The purposes for which Morar HPI’s prior written consent is required under 5.1 shall include:
(a) making the BrandVue Dashboard Content and/or New Material(s) available via an intranet or extranet;
(b) subject to clause 5.5, making all or part of the BrandVue Dashboard Content and/or New Materials available to the public or to a significant portion of the public for any purpose and by any means (such as via the internet) including:
(i) the publication or circulation of investment presentations or prospectuses, listing documents and/or materials relating to an initial or other public offering of securities; and
(ii) any advertising, marketing, promotional claims made by or on behalf of the Customer, including claims that appear on any product packaging.
5.3 Except as provided in clause 4 or unless the Customer has obtained Morar HPI’s express written consent to do so in accordance with this clause 5, none of the Customer, the Authorised Customer Brand nor any Authorised Users may:
(a) knowingly permit anyone other than Authorised Users to use the BrandVue platform and/or the BrandVue Dashboard Content; and/or
(b) re-distribute or make available to third parties BrandVue Dashboard Content which any of them extract from the BrandVue platform, whether incorporated in New Materials or otherwise.
5.4 None of the Customer, the Authorised Customer Brand nor any Authorised User may:
(a) systematically scrape, crawl, harvest, retrieve or otherwise gather by electronic means any data or other content from the Dashboard to monitor, access, copy, create, acquire or compile - directly or indirectly, in single or multiple downloads - a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, robots or spiders, or any automatic devices, programs, algorithms or methodologies or otherwise; or
(b) remove, obscure or modify any copyright or other notices included in the BrandVue Dashboard Content nor any metadata or digital rights management BrandVue Dashboard Content that may be associated with the BrandVue Dashboard Content.
5.5 Nothing in this Agreement shall be construed as allowing the use of the Dashboard Content, Services, New Materials or Derived Data to create a derivative work, product or service:
(a) which infringes the intellectual property rights of Morar HPI or its licensors; and
(b) in connection with any lobbying activities or any legal disputes, proceedings or allegations;
(c) which is a commercially competitive work, product or service or part thereof which competes with or could be substituted for a work, product or service provided by Morar HPI; and/or
(d) which damages the commercial interests of Morar HPI.
5.6 The Authorised Customer Brand(s) and Authorised Users shall use all reasonable endeavours to permanently delete all stored copies of the BrandVue Dashboard Content within sixty (60) days following termination or expiry of this Agreement. However, this will not prevent any continued use of any New Materials or Derived Data which were compiled before termination of this Agreement.
6. ownership of myvue dashboard content
6.1 Where the Subscription Services includes access to the MyVue Dashboard Content, subject to Morar HPI receiving payment of all Fees attributable to the MyVue Dashboard Content, Morar HPI hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the MyVue Dashboard Content which are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the MyVue Dashboard Content. For the avoidance of doubt, nothing in these terms will have the effect of transferring or assigning any of the Morar HPI’s intellectual property rights in the Dashboard(s) itself to the Customer.
7. Third party links
7.1 The Customer acknowledges that the Dashboard and/or the Dashboard Content may enable it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Morar HPI 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, with any such third party.
8. Other services
8.1 Morar HPI shall provide the Services other than the Subscription Services (if any) with reasonable skill and care and in accordance with generally accepted industry standards.
8.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of such Services contrary to Morar HPI’s instructions, or modification or alteration of such Services by any party other than Morar HPI or Morar HPI’s duly authorised contractors or agents or if such non-conformance is as a result of the Customer providing incorrect information to Morar HPI. If any such Services do not conform with clause 7.1, Morar HPI will, at its expense, use reasonable endeavours to correct any such non-conformance reasonably promptly, or provide the Customer with an alternative means of accomplishing the desired performance subject to the Customer notifying Morar HPI of any non-conformance within 90 days from the performance of the relevant Services, and such correction or substitution will be the Customer's sole and exclusive remedy for any such breach of clause 7.1.
8.3 This agreement shall not prevent Morar HPI from entering into similar agreements with third parties, or from independently developing, using, selling or licensing the BrandVue Dashboard Content or products and/or services which are similar to those provided under this agreement.
9. Customer's obligations
The Customer shall:
(a) provide Morar HPI with
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary information as may be required by Morar HPI in order to provide the Services including but not limited to the information which Morar HPI needs in order to comply with article 30(2) GDPR (if not already within Morar HPI’s knowledge);
(b) comply with, and procure that each Authorised Customer Brand and Authorised User complies with, all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any failure or delay in the Customer's provision of such assistance as agreed by the parties, Morar HPI may adjust any agreed timetable or delivery schedule as reasonably necessary and recover from the Customer any reasonable increased costs it incurs as a result of such failure or delay;
(d) ensure that the Authorised Users use the Dashboard and the Dashboard Content in accordance with the terms and conditions of this agreement and any other reasonable instructions given by Morar HPI to the Customer, and shall be responsible for any Authorised User's breach;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for its Use of the Subscription Services and receipt of the other Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Morar HPI from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links, 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.
10.1 The Customer shall pay the Fees, without the right of set off or withholding, in the amounts and at the times specified in the Order Form.
10.2 Unless the Order Form specifies otherwise, the Fees shall be invoiced to the Customer annually in advance and all Fees shall be payable within 30 days of the date of the invoice.
10.3 If Morar HPI has not received payment of any of the Fees within 15 days after the due date, and without prejudice to any other rights and remedies of Morar HPI:
(a) Morar HPI may, without liability to the Customer, disable the Customer's and/or the Authorised Users’ password, account and access to all or part of the Dashboard and Morar HPI shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4 All amounts and Fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which Morar HPI will add to its invoice(s) at the appropriate rate and the Customer will pay.
11. proprietary rights
11.1 Nothing in this agreement will have the effect of transferring or assigning any of the Customer’s intellectual property rights in the Customer Data to Morar HPI. As between Morar HPI and the Customer, the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
11.2 Morar HPI will treat any Customer Data as the Confidential Information of the Customer, and will not use or exploit it for its own commercial purposes. However, the Customer acknowledges and agrees that the Subscription Service is not a zero-knowledge service, that Morar HPI’s security measures may not be impregnable, and that the Subscription Service is not designed to be used as a repository of highly confidential materials. The Customer therefore agrees that it will not upload to the Subscription Service any Customer Data which would be likely cause significant harm to the business of the Customer, its Affiliates or its or their respective customers or suppliers if it were to be disclosed, and acknowledges that Morar HPI limits its liability in respect of disclosures of Customer Data accordingly, in the manner set out in clause 15.
11.3 While Morar HPI may, in the course of its own internal processes, incidentally take backups of the Customer Data, the Customer acknowledges and agrees that the Subscription Service is not a backup or disaster recovery service, and is not designed to hold the only copy of any Customer Data, and that Morar HPI therefore excludes any liability for loss of or damage to Customer Data.
11.4 The Customer acknowledges and agrees that, as between Morar HPI and the Customer, Morar HPI and/or its licensors own all intellectual property rights in any Dashboard and the BrandVue Dashboard Content (other than any Customer Data). Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Dashboard Content.
11.5 The Customer grants Morar HPI a non-exclusive, royalty-free licence for the Licence Term to use the Customer Data and Customer’s name and/or logo in the creation of the Dashboard Content, solely for use in providing the Services and, with the Customer’s prior consent (not to be unreasonably withheld) as part of its credentials documentation. Where Morar HPI makes use of the Customer’s name or logo in its credentials documentation, it will not do so in a manner likely to damage or invalidate the Customer’s rights in such name or logo, or to bring it into disrepute.
12. Data protection
12.1 Morar HPI shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at https://www.mig-global.com/privacy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Morar HPI in its sole discretion.
12.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
12.3 The parties acknowledge that:
(a) if Morar HPI processes any personal data (as defined in the Data Protection Legislation, Personal Data) on the Customer's behalf when performing its obligations under this agreement, the Customer is the data controller and Morar HPI is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
(b) unless set out otherwise in the Order Form, this agreement sets out the scope, nature and purpose of processing by Morar HPI, the duration of the processing and the types of Personal Data and categories of Data Subject.
(c) the Personal Data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Morar HPI's other obligations under this agreement, provided that the Customer or Morar HPI has provided appropriate safeguards in relation to the transfer.
12.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Morar HPI for the duration and purposes of this agreement so that Morar HPI may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer's behalf.
12.5 Without prejudice to the generality of clause 11.2, Morar HPI shall, in relation to any Personal Data processed in connection with the performance by Morar HPI of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless Morar HPI is required by the laws of any member of the European Union or by the laws of the European Union applicable to Morar HPI to process Personal Data. Where Morar HPI is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Morar HPI shall promptly notify the Customer of this before performing the processing required by such laws unless those laws prohibit Morar HPI from so notifying the Customer;
(b) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(c) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(d) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(e) maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
12.6 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
12.7 The Customer consents to Morar HPI appointing third-party processors of Personal Data under this agreement.. As between the Customer and Morar HPI, Morar HPI shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.
13.1 This clause 13 will not apply to any Confidential Information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was already in the other party's lawful possession before disclosure by the disclosing party;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
13.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the exercise of its rights and performance of its obligations under this agreement.
13.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
13.4 This clause 13 shall survive termination of this agreement, however arising.
14.1 The Customer hereby defends, indemnifies and holds harmless Morar HPI against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
(i) the Customer's use of the Services and/or Dashboard Content other than in accordance with this Agreement; and/or
(ii) the Customer Data.
14.2 Subject to clause 14.3, Morar HPI hereby defends the Customer against any claim that the Dashboard or the Dashboard Content (other than any Customer Data) infringes any copyright, trade mark, database right or right of confidentiality in the United Kingdom (each, a “Third Party IP Claim”), and indemnifies the Customer for any amounts awarded against the Customer in judgment or settlement of such Third Party IP Claims.
14.3 In no event shall Morar HPI, its employees, agents and sub-contractors be liable to the Customer to the extent that the Third Party IP Claim is based on:
(a) the Customer Data;
(b) a modification of the Services or Dashboard Content by anyone other than Morar HPI; or
(c) the Customer's use of the Services or Dashboard Content in a manner contrary to the instructions given to the Customer by Morar HPI; or
(d) combination of the Services with some other product or service, if the alleged infringement would have been avoided by not so doing; or
(e) the Customer's use of the Services or Dashboard Content after notice of the alleged or actual infringement from Morar HPI or any appropriate authority.
14.4 In the event of a Third Party IP Claim, Morar HPI will use reasonable efforts to:
(i) obtain for the Customer a right to continue to use the Dashboard and the Dashboard Content;
(ii) modify the Dashboard and/or the Dashboard Content so as to avoid the alleged infringement; or
(iii) if it is not reasonably practicable to do either of those things, terminate this Agreement and give the Customer a pro rata refund of any Fees paid in advance for any period of the Initial Licence Term or Renewal Period (as the case may be) following such termination. The indemnity set out in clause 14.2 and this clause 14.4 set out the Customer’s sole and exclusive remedy in respect of any Third Party IP Claim.
14.5 Each of the indemnities such out in clauses 14.1 and 14.2 is subject to:
(a) the indemnifying party being given prompt notice of any such claim;
(b) the indemnified party not making any admission in respect of, nor settling or otherwise disposing of, any such claim without the indemnifying party’s prior written consent;
(c) the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party’s expense; and
(d) the indemnifying party being given sole authority to defend or settle the claim.
15. Limitation of liability
15.1 This clause 15 sets out the entire financial liability of Morar HPI (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising under or in connection with this agreement and any use made by the Customer or any Authorised User of the Services and Dashboard Content or any part of them.
15.2 The Customer acknowledges that the Subscription Service and the Dashboard Content are provided to the Customer on an "as is" basis and accordingly the Customer assumes sole responsibility for the results obtained from its use of the Subscription Service and the Dashboard Content, and for conclusions drawn from such use. Morar HPI shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Morar HPI by the Customer in connection with the Services, or any actions taken by Morar HPI at the Customer's direction; and
15.3 Nothing in this agreement excludes the liability of either party:
(a) for death or personal injury caused by its negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any other matter for which it is unlawful to limit or exclude liability (as the case may be).
15.4 Subject to clause 15.3 Morar HPI shall under no circumstances whatsoever be liable to the Customer, its employees, agents or sub-contractors, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or revenue, any account of its own profits, any loss of, damage to or corruption of data, any damage to goodwill or reputation, any loss of contracts, loss of opportunity or loss of anticipated savings, any increased costs or loss of management time, or any indirect or consequential loss.
15.5 Subject to clauses 15.3 and 15.4, Morar HPI’s total aggregate liability:
(a) in respect of the indemnity at clause 14.2 shall be limited to £1,000,000; and
(b) otherwise, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited:
(i) during the first 12 months of the Licence Term, to 1.5 times the total Fees paid or payable for the Services during such first 12 months; and
(ii) thereafter, to 1.5 times the total Fees paid for the Services during the 12 months immediately preceding the date on which the event (or last in the series of events) giving rise to the claim occurred.
15.6 Save as expressly set out in this agreement, 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.
16. Term and termination
16.1 This agreement shall commence on the date set out at the top of the Order Form and shall continue for the Licence Term unless otherwise terminated in accordance with this clause 16.
16.2 Either party may terminate this agreement:
(a) upon 60 days’ written notice to the other party, if the other party has committed a material breach of this agreement and such breach remains uncured at the expiration of such period, or
(b) immediately by written notice to the other party if (i) the other party passes a resolution for its winding up or a court makes an order for its winding up or dissolution (other than for the purpose of any bona fide amalgamation, merger or reconstruction); (ii) an administration order is made in relation to the other party that has not been set aside within seven days after the order has been made, or if a receiver is appointed over, or an encumbrancer takes possession of or sells, any material part of the assets or undertaking of the other party; (iii) the other party makes an arrangement or composition with its creditors generally or makes an application to a court for protection from its creditors generally; (iv) the other party disposes of all its assets or a substantial part of its assets (other than for the purpose of any bona fide amalgamation, reconstruction or merger); (v) the other party commences or has commenced against it any insolvency, reorganisation, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceedings, and, if such case or proceeding is commenced against it, such case or proceeding is not dismissed within seven days thereafter; (vi) the other party becomes insolvent or generally fails to pay or admits in writing its inability to pay, its debts as they become due; or (vii) the other party is subject to any equivalent process or proceedings in any jurisdiction anywhere in the world.
16.3 Morar HPI may terminate this agreement immediately:
(a) if Morar HPI has not received payment for all or any of the Fees within 30 days of the due date; or
(b) if there is a change of control of the Customer (where “control” has the meaning given to it in s1124 of the Corporation Tax Act 2010), and the person gaining control of the Customer is, or controls, a direct competitor of Morar HPI.
16.4 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) Morar HPI may destroy or otherwise dispose of any of the Customer Data in its possession unless Morar HPI receives, no later than 30 days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Morar HPI shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request;
(c) the Customer shall immediately pay Morar HPI for all Morar HPI's outstanding unpaid invoices, and, in respect of Services performed and expenses incurred but not yet invoiced, Morar HPI may submit invoices, which shall be payable immediately on receipt; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17. Force majeure
Morar HPI shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that the Customer is notified of such an event and its expected duration.
If there is any conflict or direct inconsistency between any of the documents comprising this agreement, they will prevail according to the following order of precedence: (i) any Special Terms; and then (ii) these terms and conditions; and then (iii) the rest of the Order Form.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy.
21.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
22. Entire agreement
22.1 This agreement consists only of the Order Form, these terms and any Morar HPI policies referred to in them, and constitutes the whole agreement between the parties. It supersedes any previous arrangement, understanding or agreement between the parties relating to the subject matter which it covers.
22.2 Each of the parties acknowledges and agrees that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement. Nothing in this clause 22.2 will limit or exclude either party’s liability for any fraudulent misrepresentation.
23.1 The Customer shall not, without the prior written consent of Morar HPI, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.2 Morar HPI may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
24. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. Third party rights
A person who is not a party to this agreement will have no right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any term of it. The parties will not require the consent of any third party to amend this agreement.
26.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes, or sent by email to the address specified in the Order Form. Where a notice of termination is to be served by email, it must be followed by notice delivered by another means permitted under this clause 26.1 or such notice by email will not be valid.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A correctly addressed notice sent by email and which is not returned as undeliverable by the sender’s email system shall be deemed to have been received 4 hours after sending, unless it is sent outside of the hours of 9am to 6pm London time on Business Days, in which case it will be deemed to have been received on the next Business Day.
26.3 This clause 26 will not apply in respect of service of process beginning any legal proceedings, or correspondence pursuant to an applicable pre-action protocol.
27. Governing law
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.
Each party irrevocably agrees that the courts of England 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).