TERMS AND CONDITIONS

7. Confidentiality Obligations

7.1 The parties understand and agree that in connection with the negotiation and performance of this Agreement, each party may have had or have access to or may have been or be exposed to, directly or indirectly, private or Confidential Information of the other party including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects, know-how, ideas, and technical, business, pricing information, financial and marketing information and strategies and any other information that the receiving party reasonably should know is confidential. Both parties shall:

• keep the other party’s Confidential Information strictly confidential using the same degree of care to protect the other party’s Confidential Information as that party uses to protect its own Confidential Information of a similar nature;
• not disclose the other party’s Confidential Information to any person without that other party’s prior written consent, and even then, only under conditions of confidentiality approved in writing by the party whose Confidential Information is being disclosed;
• act in good faith at all times in relation to the other party’s Confidential Information; and d) not use any of the other party’s Confidential Information except for the purpose it was divulged to the receiving party.

7.2 Notwithstanding Clause 7.1, a party's Confidential Information may be disclosed by the receiving party to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or any executed non-disclosure agreement to protect the confidentiality of the disclosed Confidential Information.

7.3 No obligations are imposed by this Clause 7 with respect to a party's Confidential Information if that Confidential Information:

• is available to a party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information;
• at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representative); or
• has been independently acquired or developed by a party without violating its obligations under this Agreement or under any applicable law, or is obtained by either party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

7.4 The restrictions in this Clause 7 do not apply to the extent if any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognized stock exchange.

7.5 Upon the termination of the Agreement, each party must immediately cease to use the other party’s Confidential Information; within five (5) Business Days following the date of receipt of a written request for termination from the other party, the relevant party shall destroy or return to the other party (at the other party's option) all media, tangible or intangible, containing the other party's Confidential Information, and must delete or destroy the other party's Confidential Information.

7.6 The provisions of this Clause 7 shall continue in force indefinitely following the termination of the Agreement.

7.7 The parties shall not make any public disclosures relating to the Agreement or the contents of the Agreement (including disclosures in press releases, public announcements, and/or marketing materials) without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed.

8. Data Protection

8.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Personal Data under the Agreement and the Service Provider shall only process the Client Data on the documented instructions of the Client as set out in the Agreement or any other document agreed by the parties in writing.

8.2 Notwithstanding any other provision of the Agreement, the Service Provider may process the Client Data if, and to the extent that the Service Provider is, required to do so by applicable law. In such a case, the Service Provider shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

8.3 The Client warrants to the Service Provider that it has the legal right to disclose all Personal Data to the Service Provider under or in connection with the Agreement, moreover, the Client shall only supply to the Provider, and the Service Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of data subjects falling within the categories and of the types specified in Sales Order; and the Service Provider shall only process the Client Data for the purposes specified in Schedule 5.

8.4 The Service Provider shall only process the Client Data during the Term and for not more than SIXTY (60) days following the end of the Term, subject to the other provisions of this Clause 8.

8.5 The Service Provider shall ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

8.6 The Service Provider and the Client shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Client Data, including those measures specified in Schedule 5.

8.7 The Service Provider is hereby authorized by the Client, as at the Effective Date, to engage third parties to process the Client Data. The Service Provider shall inform the Client at least fourteen (14) days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Client objects to any such changes before their implementation, the Client may terminate the Agreement on seven (7) days' written notice to the Provider, providing that such notice must be given within the period of seven (7) days following the date that the Service Provider informing the Client of the intended changes. The Service Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider.

8.8 The Client acknowledges that the Client Data may be transferred outside the Delaware in connection with exercise of this Agreement and that the appropriate consents (from any user(s) or end-user(s)) for any such potential transfer shall be acquired by the Client. For this, the Service Provider may also require a separate data processing agreement to be entered into with the Client as and when required by the applicable Data Protection Laws.

8.9 The Service Provider shall assist the Client in ensuring compliance with the obligations relating to the security of processing of Personal Data, the notification of Personal Data breaches to the supervisory authority, the communication of Personal Data breaches to the data subject, data protection impact assessments, prior consultation in relation to high-risk processing, and fulfillment of the Client's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

8.10 The Service Provider shall, at the choice of the Client, delete or return any or all of the Client’s Personal Data to the Client and shall delete existing copies save to the extent that applicable law requires the storage of the said Personal Data. The Client may also delete any such data at any time via the Account.

8.11 If any changes or prospective changes to the Data Protection Laws results in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data as set out under the Agreement, then the parties shall promptly use their best endeavors to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

9. Warranties

9.1 Each party represents and warrants to the other party that, to the best of its knowledge:

• the signatory signing this Agreement on its behalf has the right to sign this Agreement;
• this Agreement does not and shall not conflict with any other agreement entered into by it; and

Except for the foregoing warranties, and to the fullest extent permissible under the applicable law, both parties disclaim all representations and warranties, express or implied, concerning or related to this Agreement including, but not limited to, any implied terms concerning satisfactory quality, fitness for a particular purpose and reasonable care and skill. The Service Provider does not warrant, guarantee, or make any representations regarding the use, the results of the use, or the benefits of the services, or any information contained therein or otherwise provided pursuant to this Agreement, except as expressly provided herein. No personnel of the Service Provider is authorized to make any expansion, modification, or addition to this limitation or the exclusion of representations, warranties, and other terms in this Agreement. In the event of any breach of the representations and warranties contained in this Agreement (save for any fraudulent misrepresentation), the sole and exclusive liability of the breaching party shall be to use commercially reasonable efforts to promptly correct such breach.

9.2 The Service Provider warrants to the Client that:

• the Service Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfillment of the Provider's obligations under the Agreement;
• the Platform will incorporate security features reflecting the requirements of good industry practice: and c) that the Hosted Services, when used by the Client in accordance with the Agreement, will not breach any laws, statutes, or regulations applicable under the English law and will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

9.3 The Client acknowledges that:

• use of the Hosted Services is at the Client’s sole risk, that the Service Provider cannot and does not warrant that the service will meet all requirements of the Client, or that the operation of the Hosted Services will be uninterrupted or error- free.
• the Hosted Services and anything related thereto are provided "as is" and "as available", with all faults and without warranty of any kind, and Service Provider hereby expressly disclaims all warranties and conditions with respect to the Hosted Services and anything related thereto, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment, and of non-infringement of third party rights. No oral or written information or advice given by the Provider, or its Affiliate shall mean or intend to create a warranty, express or implied.
• complex software is never wholly free from defects, errors, bugs etc. nor entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, the Service Provider gives no warranty or representation that the Hosted Services will be entirely secure or that the Hosted Services will be wholly free from defects, errors and/or bugs or that such defects shall be corrected promptly by the Provider.
• the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Service Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
• the Service Provider may not be able to ensure exactly 100% accuracy in results or go by the sharp 15-second verification time; these figures may vary slightly as the verification process can be delayed owing to heavy website traffic or the clarity of the verification document.
• the payment of Charges shall not depend on the use or non-use of the Hosted Services and all the Charges once committed are payable, non-refundable, non-cancellable, and irrevocable except as otherwise provided in the applicable Sales Order.
• it has had the opportunity to obtain independent legal advice in connection with the execution of this Agreement and has read this Agreement in its entirety, understands its contents, and is signing this Agreement freely and voluntarily, without duress or undue influence on the Client from the Service Provider or any other party.

9.4 The Client acknowledges that since Personal Data of its consumers or end-users will be provided to the Service Provider for processing, the Client warrants to be solely responsible to obtain or acquire its consumers’ or end-users’ consent to ensure any compliance with Data Protection Law, before passing the Personal Data to the Processor. In such a case, the Client shall maintain and enforce a privacy policy which is in line with the Data Protection Laws.

9.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement.

10. Client Indemnities

The Client shall indemnify and shall keep indemnified the Service Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Service Provider and arising directly or indirectly as a result of any breach by the Client. Further, the Client shall:

• provide to the Service Provider all such assistance as may be reasonably requested by the Provider;
• allow the Provider, when the Service Provider so requires, the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties; and
• not admit liability to any third party or settle any disputes or proceedings involving a third party without the prior written consent of the Provider, and the Provider's obligation to indemnify the Client shall not apply unless the Client complies with the requirements of this Clause.

11. Limitations and Exclusions of Liability

11.1 This clause 11 sets out the entire financial liability of the Service Provider (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Client:

• arising under or in connection with this Agreement (including under any indemnity);
• in respect of any use made by the Client of the Hosted Services and Documentation or any part of them; and
• in respect of any representation, statement or tortious act or omission (including negligence) arising under or inconnection with this Agreement.

Nothing in the agreement shall limit or exclude (i) any liability for death or personal injury resulting from negligence;

(i) any liability for fraud or fraudulent misrepresentation; (ii) any liabilities in any way that are not permitted under applicable law; (iii) any liabilities that may not be excluded under applicable law; or (iv) breach of any restrictions mentioned at Clause 2.7 to Clause 2.14 inclusive (except Clause 2.9).

11.2 Subject to Clause 11.1:

• the Service Provider shall not be liable whether in contract (including under any indemnity), tort (including for negligence or breach of statutory duty), misrepresentation, restitution, or otherwise under or in connection with this Agreement for:
  • any loss of profits, loss of business, loss of anticipated savings, loss of business opportunity, depletion of goodwill, or loss or corruption of data or information or similar losses (in each case, whether direct or indirect); or
  • any special, direct or indirect, or consequential loss, costs, damages, charges or expenses
• the Provider’s total aggregate liability (in respect of any event or series of related events) in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise under or in connection with this Agreement shall not exceed the lesser of:
  • US$ 5,000; or
  • the total amount paid or payable by the Client to the Service Provider under the Agreement in the 3- month period preceding the commencement of the event or events.

The Client shall not be liable to the Service Provider in respect of any losses arising out of a Force Majeure Event; loss of profits, income, revenue, or business opportunities; any special, indirect, or consequential loss or damages.

12. Force Majeure Event

12.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

12.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement must promptly notify the other party and inform the other party of the period for which it is estimated that such failure or delay will continue.

12.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

12.4 No Force Majeure Event shall prevent the Client to pay the Charges agreed herein.

13. Term and Termination

13.1 Subject to other clauses herein, the Agreement shall commence in full force and effect on the Effective Date for duration of the Term and shall automatically renew for a period equivalent to the Term unless terminated in accordance with the provisions herein.

13.2 The Agreement shall stand terminated if either party gives to the other party a thirty (30) days prior written notice of termination.

13.3 Either party may terminate the Agreement for cause (the “Termination for Cause”) by giving the other party a written notice within seven (7) days of the breach and notifying them to remedy such breach within fourteen (14) days of the occurrence of the breach. If the affected party fails to notify the party-in-breach within seven (7) days or if the party-in-breach fails to remedy the said breach within the stated fourteen (14) day period, the Agreement shall stand terminated.

14. Effects of Termination

14.1 Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, and all licenses and user rights granted under this Agreement shall immediately terminate and the Client shall, and shall procure that all authorized users shall, immediately cease all use of the Hosted Services and/or the Documentation, and the Service Provider may remotely disable the Client’s access to the Hosted Services, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 6, 7, 8, 9.3, 10, 11, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24 and 25. Each party shall return and make no further use of any equipment, property, Documentation (in the case of the Client), and other items (and all copies of them) belonging to the other party.

14.2 Except to the extent that the Agreement expressly provides otherwise, 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

14.3 Without prejudice to the parties' other legal rights, within fifteen (15) days following the termination of the Agreement, the Service Provider shall be entitled to receive from the Client all Charges, fees, and expenses accrued or incurred under this Agreement up to the date of termination, and the Client shall pay to the Service Provider any outstanding, due, or agreed Charges in respect of Hosted Services (whether or not taken or delivered) provided to the Client before the termination of the Agreement (i-e until the last day this Agreement remains in effect).

14.4 In case of Termination for Cause, the Service Provider shall refund, subject to Clause 14.3, any Charges paid by the Client to the Service Provider in respect of Services that were to be provided to the Client during the remainder Term.