RLDatix Software Licence for DatixWeb
To view the RLDatix Software Licence for DatixCloudIQ, pleasThe list of sub processors used can be found here.e click here.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Licence (defined below), the following words have the following meanings:
"ADDITIONAL CHARGES" means RLDatix's charges from time to time other than the Licence Fee for work undertaken on a time and materials basis together with any expenses reasonably incurred in the performance of such work.
“AGREEMENT” means this Licence, the Order Form, the Service Level Agreement and (if the Order Form relates also to Hosting Services) the Terms and Conditions (as any of them may be amended in accordance with this Licence and/or the Terms and Conditions).
"ANNUAL CHARGE" means the annual charge set out in the Order Form for the use of the Licensed Programs.
"BUSINESS DAY" means 9:30 a.m. to 5:00 p.m. on any day which is not a Saturday, Sunday or bank or other public holiday in England and Wales.
“CHARGES” means the Licence Fee and, where applicable, the Integration Services Charges.
"COMMENCEMENT DATE" means such date as RLDatix shall install the Licensed Programs on the Designated Equipment or make available the Licensed Programs to the Customer, whichever is the sooner.
“CONFIDENTIAL INFORMATION” means the terms of this Licence along with any and all information or materials in any form or medium (whether written, oral, visual or electronic) disclosed directly or indirectly by either party or its employees or representatives to the other in connection with this Licence which is of a confidential or proprietary nature or is received in circumstances in which the receiving party knows or should know that the information is confidential including without limitation any financial and commercial information relating to the business of either party (and, in the case of RLDatix, any source code, the Licensed Programs, the Operating Instructions, manuals and any other procedures, systems, information or know-how arising out of or in connection with the Licensed Programs).
"CUSTOMER" means the entity to which the Order Form is addressed but shall not include any parent, group, affiliated or related undertakings unless otherwise agreed in writing by RLDatix.
"CUSTOMER-SUPPORT" means such support as provided by RLDatix in connection with the Licensed Programs including: a) Fault rectification in accordance with clause 9 of this Licence and the Service Level Agreement; b) attendance by the Customer at such user groups and meetings that RLDatix may in its absolute discretion hold from time to time; and c) any other support which RLDatix and the Customer shall agree in writing.
“CYBER ATTACK” means a cyber security threat or attack (including a virus attack) or data security breach.
“DATA PROTECTION LAWS” means the General Data Protection Regulation 2016 (2016/679), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws that replace or amend any of these and any applicable data protection laws and regulations relating to individual privacy as amended from time to time“DPA” means the Data Protection Act 2018.
"RLDATIX" means DATIX LIMITED (trading as RLDatix) (company number 02046379) of Swan Court, 11 Worple Road, Wimbledon, London, SW19 4JS.
“RLDATIX WEBSITE” means www.rldatix.com (and/or any successor or related site designated by RLDatix).
"DESIGNATED EQUIPMENT" means a machine which meets or exceeds the Minimum Configuration recommended by RLDatix upon which the Licensed Programs are to be installed.
“END USER” means any individual or entity that directly or indirectly through another user accesses or uses the Licensed Programs under the Customer’s account.
“EXISTING IPRs” means the IPRs in existence and belonging to a party prior to commencement of this Licence.
"FAULT" means a failure of the Licensed Programs to perform in accordance with the Operating Instructions which is present and is replicated in the copy of the Licensed Programs maintained by RLDatix for the purpose of supporting the Customer but not any failure to perform which arises due to a failure by the Customer to follow the Operating Instructions.
"FORCE MAJEURE" means any event which is beyond the control of a party or which it would not be reasonable to expect a party to control, including Cyber Attacks affecting RLDatix’s systems, acts of God, labour disputes or other industrial disturbances, electrical or power outages, failure of suppliers, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
“GDPR” means the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) and any laws that repeal, replace or amend such regulation (including without limitation all applicable laws and regulations relating to the processing of the personal data and privacy in force in the United Kingdom from time to time).
"HOSTING SERVICES" means the hosting and related services which are described as “the Services” in the Terms and Conditions.
“HOSTING PROVIDER” means a Third Party service provider used by RLDatix (on a subcontracting basis) to provide the Hosting Services.
“INSTALLATION” means installation such that the Licensed Programs can be accessed by the Customer ready for configuration.
"INITIAL CHARGE" means the setup fee and the annual charge for the first year set out in the Order Form due on submission of the Order Form, payable by the Customer 30 days after the date of the invoice.
“INTEGRATION SERVICES” means the integration services, as set out in the Order Form.
“INTEGRATION SERVICES CHARGES” means the charges for the Integration Services, as set out in the Order Form.
"INTELLECTUAL PROPERTY RIGHTS" or “IPRs” means intellectual property rights and industrial property rights of any nature whatsoever including without limitation patents, patent applications, copyright, know-how, technical and commercial information, designs and design rights (whether registered or unregistered), internet domain names, database rights, trade marks, service marks or business names, applications to register any of the aforementioned rights, trade secrets and rights of confidence, in each case in any part of the world and whether or not registered or registerable.
"LICENCE" means these terms and conditions under the heading RLDatix Software Licence together with the Service Level Agreement, Schedule 4 (Parts A and B) and any other documents expressly incorporated by reference.
"LICENCE FEE" means the Initial Charge and the Annual Charges.
"LICENSED PROGRAMS" means the whole or any part of software programs in object code form identified in the Quote including any New Release or Update or other new software supplied from time to time and also including the Licensed Programs Database Structure.
"LICENSED PROGRAMS DATABASE STRUCTURE" means the whole or part of any database structure or schema or file format used by the Licensed Programs to store or access data input into the Licensed Programs.
"MINIMUM CONFIGURATION" means any minimum configuration advised by RLDatix to the Customer in the Order Form or specified in the technical documentation as updated from time to time.
"NEW RELEASE" means any new version of the Licensed Programs issued by RLDatix which incorporates functionality which, in RLDatix's sole opinion, materially improves upon, or is additional to, the functionality of the then current version of the Licensed Programs.
"OPERATING INSTRUCTIONS" means the whole or any part of the instructions and procedures contained within the Licensed Programs.
"ORDER FORM " or "ORDER" means the order form, order or any quote, quotation, business case or proposal issued by RLDatix relating to the Services to be provided and the associated fees and which is accepted by the Customer.
"OTHER CHARGES" means the fees, other than the Annual Charge, identified in the Order Form, if any.
“PERSONAL DATA” means personal data which comes into RLDatix’ possession as a result of, or in connection with, its performance of its obligations under the Licence
"PERMITTED USERS" means either the specified individuals or specified category or group of users identified in the Order Form, subject always to RLDatix’s right to reject an individual, category or group, at RLDatix’s discretion.
“PRIVACY POLICY” means the privacy policy on the RLDatix Website, as it may be updated by RLDatix from time to time.
"PROCESSING", in relation to data, shall have the same meaning as set out in the Data Protection Laws
“PURPOSE” means the purpose, if any, specified in the Order Form or the Schedules.
"SERVICE LEVEL AGREEMENT" means the service level agreement applicable to Customer-Support set out in Schedule 1, as such agreement may be updated by RLDatix from time to time.
“SCHEDULE” means a Schedule attached to this Licence.
"SITE" means that part of the Customer's undertaking as described in the Order Form in respect of which the Licensed Programs can be used.
"TERMS AND CONDITIONS" means the terms and conditions setting out the rights and obligations of the parties in relation to the Hosting Services to be provided by RLDatix to the Customer, as set out in Schedule 3.
“THIRD PARTY” means any person other than RLDatix and the Customer.
"UPDATE" means a modification or addition by RLDatix to the then current version of the Licensed Programs which is not a New Release.
“VAT” means value added tax and any other tax of any jurisdiction based on sales of goods or services such as sales taxes and any similar, replacement or additional tax.
“YEAR” means the period of twelve months starting on the Commencement Date and each successive period of twelve months starting on each anniversary of the Commencement Date.
1.2. In this Licence (except where the context otherwise requires):
1.2.1. words in the singular include the plural and vice versa and reference to any gender includes the others;
1.2.2. reference to “a person” includes a natural person, company or unincorporated body (whether or not having separate legal personality);
1.2.3. references to legislation or to law are to that legislation or law as amended, extended, re-enacted or replaced from time to time and include (a) all subordinate legislation made from time to time under it and (b) all legislation superseding legislation that formerly implemented any European Union legislation notwithstanding that such new legislation may no longer implement any European Union legislation;
1.2.4. any words following the terms “including”, “include”, “in particular” or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms;
1.2.5. without prejudice to Clause 19.3, a reference to “writing” or “written” does not include email; and
1.2.6. any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.3. Headings are for convenience only and shall not affect the interpretation of this Licence.
2. GRANT OF LICENCE
2.1. RLDatix, in consideration of the payment by the Customer of the Licence Fee, hereby grants to the Customer, until the termination of the Agreement in accordance with its terms, a non-exclusive licence for the Permitted Users to use, solely for the Purpose, the Licensed Programs upon the Designated Equipment upon the terms and conditions of this Licence.
2.2. The Customer shall immediately on entering into the Agreement (by submitting the Order Form) provide any relevant purchase order to RLDatix, using the method enabled by the submission of the Order Form or by any other method specified by RLDatix. The Customer accepts that RLDatix will not provide the Customer with access to the Licensed Programs until such relevant purchase order is received.
2.3. Notwithstanding the terms of clause 2.1, nothing in this Licence shall entitle the Customer (or Permitted Users) to use the Licensed Programs for the purposes of Processing data for or on behalf of any Third Party. The Customer is however permitted to use the Licensed Programs for the purposes of meeting its statutory or regulatory requirements imposed by governmental or regulatory bodies.
2.4. RLDatix does not warrant that the use of the Licensed Programs or Third Party content will meet the Customer's data processing requirements or that the Licensed Programs will be uninterrupted or error free.
2.5. The Customer shall permit RLDatix to inspect and have access to any premises (and to the computer equipment located there) at or on which the Licensed Programs are being kept or used, and have access to any records kept in connection with this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that RLDatix provides reasonable advance notice to the Customer of such inspections.
2.6. Hosting Services
2.6.1. Where RLDatix is providing Hosting Services to the Customer, RLDatix shall provide the Hosting Services to the Customer and the Customer shall pay for the Hosting Services in accordance with the Terms and Conditions.
2.6.2. The Terms and Conditions shall apply solely to the Hosting Services.
2.6.3. The provisions set out in this clause 2.6 and in clauses 12, 14, 16, 17, 21 and 29 apply to the Hosting Services as well as to this Licence (as do any other provisions within this Licence specifically identified as applying to the Hosting Services). Apart from those provisions, no other provisions of this Licence shall apply to the Hosting Services.
2.7. Integration Services
2.7.1. Where RLDatix is providing Integration Services to the Customer, those services will be provided with reasonable care and skill.
2.7.2. If the Licensed Programs and the Customer’s system and/or software do not interface with each other, whilst RLDatix will use its reasonable endeavours to rectify any interfacing issue:
a RLDatix shall be under no obligation to rectify any interfacing issue where the interfacing issue is, in RLDatix’s opinion, attributable to the Customer’s system and/or software; and
b the Service Level Agreement shall not apply to any interfacing issue.
3. PROPERTY AND CONFIDENTIALITY IN THE LICENSED PROGRAM MATERIALS
3.1. The Customer shall:
3.1.1. keep the Licensed Programs confidential and limit access to the same to those of its employees agents and sub-contractors who either have a need to know or who are engaged in the use of the Licensed Programs;
3.1.2. without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the Confidential Information and Intellectual Property Rights of RLDatix in the Licensed Programs; and
3.1.3. inform all relevant employees agents and subcontractors that the Licensed Programs constitute Confidential Information of RLDatix and that all Intellectual Property Rights therein are the property of RLDatix and the Customer shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause 3.
3.2. The Customer shall not;
3.2.1. assign sub-license transfer sell lease rent charge or otherwise deal in or encumber the Licensed Programs nor use on behalf of or make available the same to any Third Party nor use the same to provide services to any Third Party, except as may be authorised by RLDatix in writing from time to time (in which case RLDatix reserves the right to increase the Annual Charge); or
3.2.2. subject to clause 4.6, decompile the whole or any part of the Licensed Programs from object code into source code or permit any software or other program to be written or developed based on or derived from the Licensed Programs or the Operating Instructions.
4. COPYING OF THE LICENSED PROGRAMS
4.1. Without limiting any express right that the Customer may have under the Copyright, Designs and Patents Act 1988 to make backup copies of the Licensed Programs, the Customer shall not copy the whole or any part of the Licensed Programs except in accordance with this clause 4.
4.2. The Customer shall be entitled to make backup copies of the Licensed Programs and the Operating Instructions. Any such copies shall in all respects be subject to the terms and conditions of this Licence and shall be deemed to form part of the Licensed Programs.
4.3. The Customer shall reproduce on all copies of the Licensed Programs and Operating Instructions RLDatix's copyright and trade mark notices.
4.4. The Customer shall maintain an up-to-date written record of the copies of the Licensed Programs and Operating Instructions, their location and date on which the copies were made, and upon request forthwith produce such record to RLDatix.
4.5. Other than for backup purposes, the Customer shall not be permitted to make or store more than one copy of the Licensed Programs and Operating Instructions without the prior written permission of RLDatix.
4.6. Subject to any rights expressly conferred upon the Customer by the Copyright, Designs and Patents Act 1988, the Customer has no right (and shall not permit any Third Party) to copy, adapt, reverse-engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Programs. Where the Customer intends to exercise any of its rights under the Copyright, Designs and Patents Act 1988 it shall notify RLDatix of the same so as to provide RLDatix the opportunity to supply alternative information which would achieve the same result for the Customer.
5. MODIFICATION AND MERGER
5.1. The Customer shall not modify merge or combine the whole or any part of the Licensed Programs with any other software or documentation.
6. NEW RELEASES
6.1. RLDatix may, from time to time notify the Customer that it has issued a New Release, however RLDatix is under no obligation to offer New Releases. The terms of this Licence shall (unless otherwise expressly agreed) apply to such New Release and references herein to the "Licensed Programs" shall be construed as references to the New Release. Without prejudice to the generality of the foregoing, the New Release may be subject to an Annual Charge which is in excess of the maximum increase permitted in clause 10.3 below. Any such revision to the Annual Charge shall be agreed in advance by the parties.
6.2. Notwithstanding that the Customer is not obliged to take up New Releases, the Customer acknowledges that it would be unreasonable to expect RLDatix to continue indefinitely its provision of the fault rectification services referred to in clause 9 or any other support or maintenance services in respect of earlier versions of the Licensed Programs.
6.3. Accordingly, where the Customer does not take up a New Release (or any subsequent New Release) within twelve months after the date on which RLDatix notifies the Customer in accordance with clause 6.1 that it has been issued, RLDatix may terminate its provision of Fault rectification, support or maintenance services in respect of earlier versions of the Licensed Programs on giving thirty days’ notice in writing.
7. ESCROW
7.1. RLDatix shall, if requested by the Customer and provided the Customer has begun paying Licence Fees to RLDatix in respect of this Licence, deposit the source code of the Licensed Programs in escrow with a suitable escrow agent chosen by RLDatix (“Escrow Agent”) on the following terms:
7.1.1. the Customer shall pay all fees required by the Escrow Agent in respect of the escrow arrangements;
7.1.2. RLDatix shall deposit on an annual basis a copy of the source code for any Update or New Release (if applicable) released in the previous year;
7.1.3. the deposited material will only be released to the Customer in the event that RLDatix becomes insolvent or RLDatix declares it is ceasing business; and
7.1.4. the escrow arrangements will only continue while the Customer is complying with the payment and other terms of this Licence and is continuing to pay Licence Fees to RLDatix in respect of this Licence.
8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
8.1. RLDatix warrants that its title to and property in the Licensed Programs is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this Licence.
8.2. Subject to the limitations upon its liability in clause 13 below RLDatix will indemnify and hold harmless the Customer against any damages (including reasonable costs) that may be awarded or agreed to be paid to any Third Party in respect of any claim or action that the normal operation possession or use of software in the Licensed Programs which is RLDatix’s own proprietary software (that is, excluding any Third Party owned software) by the Customer infringes the IPRs of the said Third Party (an “Intellectual Property Infringement”) provided that the Customer:
8.2.1. gives notice to RLDatix of any Intellectual Property Infringement forthwith upon becoming aware of the same;
8.2.2. gives RLDatix the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express written instructions of RLDatix;
8.2.3. acts in accordance with the reasonable instructions of RLDatix and gives to RLDatix such assistance as it shall reasonably require in respect of the conduct of the said defence including, without prejudice to the generality of the foregoing, the filing of all pleadings and other court process and the provision of all relevant documents; and
8.2.4. mitigates its losses so far as possible.
8.3. RLDatix shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any act or omission of the Customer.
8.4. In the event of an Intellectual Property Infringement RLDatix shall be entitled at its own expense and option either to:
8.4.1. procure the right for the Customer to continue using the affected software as part of the Licensed Programs; or
8.4.2. make such alterations modifications or adjustments to the Licensed Programs that they become non- infringing without incurring a substantial diminution in performance or function; or
8.4.3. terminate this Licence by immediate notice in writing, in which case RLDatix's sole liability to the Customer (subject to clause 13.8) shall be the refund to the Customer of the Annual Charge applicable to the unexpired portion of the Year to which the Annual Charge then applies (calculated pro rata).
9. FAULT RECTIFICATION
9.1. Where the Customer has purchased Customer-Support, RLDatix shall, with effect from the Commencement Date and for the duration of this Licence, in accordance with the Service Level Agreement, rectify any Faults in the Licensed Programs which prevent the running of the Licensed Programs, upon request by the Customer and upon the submission if requested by RLDatix of documented Fault reports.
9.2. Rectification of Faults shall comprise all or any of the following:
9.2.1. the diagnosis of Faults in the Licensed Programs and the rectification of such Faults (remotely or by attendance on Site) by the issue of fixes, work arounds or an Update in respect of the Licensed Programs; and
9.2.2. the creation and despatch to the Customer from time to time at RLDatix's sole discretion of an Update to the Licensed Programs.
9.3. Rectification of Faults under this Licence shall not include the diagnosis or rectification of any Fault or defect resulting from:
9.3.1. the improper use operation or neglect of either the Licensed Programs or the Designated Equipment;
9.3.2. the modification of the Licensed Programs or their merger (in whole or in part) with any other software or the modification of any software on which the Licensed Programs depend;
9.3.3. the use of the Licensed Programs on equipment other than the Designated Equipment;
9.3.4. the failure by the Customer to implement recommendations in respect of or solutions to Faults previously advised by RLDatix;
9.3.5. any repair adjustment alteration or modification of the Licensed Programs by any person other than RLDatix without RLDatix's prior consent;
9.3.6. the operating system of the Designated Equipment or the configuration of any attached devices
including but not limited to terminals and printers;
9.3.7. the use of the Designated Equipment for running programs other than the Licensed Programs or the inadequacy of the Designated Equipment for running the Licensed Programs;
9.3.8. any configuration of the Licensed Programs capable of being made or reconfigured by the user;
9.3.9. the Customer's failure to install and use upon the Designated Equipment any fixes of the Licensed Programs (including Updates) within three months of receipt of the same;
9.3.10. the use of the Licensed Programs for a purpose for which they were not designed; or
9.3.11. any breach by the Customer of any of the terms or conditions of this Licence.
9.4. RLDatix may (at its sole discretion) upon request by the Customer provide support:
9.4.1. notwithstanding that the Fault results from any of the circumstances described in clause 9.3 above; or
9.4.2. related to matters other than Faults in the Licensed Programs.
9.4.3. RLDatix shall in such circumstances be entitled to levy Additional Charges.
9.5. Without prejudice to clause 9.4 above RLDatix shall be entitled to levy reasonable Additional Charges if rectification of Faults is:
9.5.1. provided in circumstances where RLDatix reasonably considers the Customer's request to have been unnecessary;
9.5.2. related to matters which are explained in the Operating Instructions or in respect of which training is available but not taken up;
9.5.3. rendered more difficult or onerous due to:
a the non-availability, for whatever reason, of any remote diagnostic facility;
b the unsuitability of the Designated Equipment for running the Licensed Programs; or
c the presence on the Designated Equipment of any programs other than the Licensed Programs; or
9.5.4. in relation to incidents caused directly or indirectly by operator error or omission.
9.6. RLDatix shall not be obliged to provide Fault rectification or any other goods or services connected with the use of the Licensed Programs:
9.6.1. where the Customer is in arrears with payment of the Initial or Annual Charge or any other payment due to RLDatix or is in breach of any term of this Licence; or
9.6.2. which involves the recovery or rectification of lost or corrupted data.
9.7. Where the Customer has not purchased Customer-Support, clauses 9.1 and 9.6 shall not apply. However, RLDatix may, at RLDatix’s sole discretion:
9.7.1. repair or replace Licensed Programs which are defective, or
9.7.2. refund the purchase price of the Licensed Programs which are defective,
in either case provided that the defect has been brought to RLDatix’s attention no more than fourteen days from the Commencement Date (or within such other time limit as RLDatix may agree).
9.8. The Customer shall in all cases:
9.8.1. communicate to RLDatix upon the date hereof the identity of the person(s) within its undertaking at the Site who shall act as the nominated contact point(s) and channel of communication in respect of this Licence, and performance of the obligations thereunder during the currency of this Licence. The Customer shall forthwith inform RLDatix of any change in the identity of any such person(s);
9.8.2. co-operate fully with RLDatix in diagnosing any Fault;
9.8.3. make available to RLDatix free of charge all reasonable facilities and services which are required by RLDatix to enable it to provide all envisaged services in connection with this Licence; and
9.8.4. not request, permit or authorise anyone other than RLDatix to provide any maintenance services in respect of the Licensed Programs.
10. FEES AND CHARGES
10.1. The Charges and any other charge levied by RLDatix from time to time shall not include VAT which shall be payable in addition by the Customer in the manner and at the rate from time to time prescribed by law.
10.2. The Annual Charge (together with VAT thereon) shall become due annually on the Commencement Date and each anniversary thereof unless otherwise agreed by RLDatix and may be invoiced in advance by RLDatix and payable by the Customer within 30 days of the date of RLDatix’s invoice therefor.
10.3. RLDatix shall be entitled to increase the Annual Charge:
10.3.1. no more than once in each Year, by an amount which does not exceed the greater of the percentage increase in RPI (as published by the United Kingdom Office for National Statistics from time to time) in the preceding twelve month period or 5% (the first such increase being based on the latest available figure for the percentage increase in RPI at the beginning of the last month before the first anniversary of the Commencement Date); and/or
10.3.2. upon provision of at least thirty days’ written notice in the event of an increase in the costs of labour, materials, fuel, tax, Hosting Provider charges or any other thing outside of RLDatix’s control which results in the costs of providing the Licensed Programs or any related services identified in the Licence.
10.4. The Customer is not permitted to access data stored by the Licensed Programs via any software or program which does not form part of the Licensed Programs unless RLDatix has given its prior written permission to the Customer.
10.5. The Customer shall not use the Licensed Programs to process data to an extent or for purposes outside the size, scope, configuration or other circumstances of the Customer as reflected in the Quote (“Extra Use”) unless RLDatix agrees to such Extra Use and the Customer pays an increased Annual Charge. If RLDatix reasonably suspects that the Customer is making Extra Use of the Licensed Programs RLDatix shall notify the Customer of the additional amount payable by the Customer. If the Extra Use continues after 30 days after that notification from RLDatix then the increased charges shall be deemed to have been accepted by the Customer. If this occurs part way through a Year the Customer shall pay the additional amount within 30 days of the date of RLDatix’s invoice therefor; and in any event the additional amount shall become part of the increased Annual Charge in respect of future Years.
10.6. The Integration Services Charges shall be paid by the Customer in accordance with the invoicing terms set out in the Order Form and shall be payable by the Customer within thirty days of the date of RLDatix’s invoice.
10.7. Additional Charges shall be invoiced by RLDatix monthly in advance and shall be payable by the Customer (together with VAT thereon) within thirty days of the date of an invoice thereof.
10.8. The Customer shall keep records of the number of people who are, from time to time, Permitted Users during the term of this Licence, and the nature of their use of the Licensed Programs, and shall disclose and certify those records on request by RLDatix. RLDatix shall have the right, at its sole discretion to revoke permission to use the Licensed Programs in respect of any Permitted User.
10.9. If the Customer permits the use of the Licensed Programs by more Permitted Users than any maximum number set out in the Order Form, then, without prejudice to any other rights RLDatix may have, RLDatix may levy Additional Charges according to RLDatix's then current standard charges per additional Permitted User.
10.10. To the extent not covered by the provisions of this clause 10. The Charges, Additional Charges and any other charges levied by RLDatix shall be invoiced and payable by the Customer (together with VAT thereon) within thirty days of the date of an invoice thereof.
10.11. RLDatix reserves the right to charge the Customer interest in respect of the late payment of any sum properly payable under this Licence (after as well as before judgement) at the rate of four per cent per annum above the base rate from time to time of Barclays Bank PLC from the date due therefor until payment.
11. CONFIDENTIALITY AND FREEDOM OF INFORMATION
11.1. Other than to its responsible employees, sub-contractors and professional advisers who need to have such Confidential Information disclosed to them and except insofar as a party may have a statutory duty to disclose any Confidential Information of the other party or is required by law or a regulatory body to do so, neither party shall divulge or communicate to any Third Party any Confidential Information of the other party but such restriction shall cease to apply to any Confidential Information of a party which may lawfully come into the public domain other than through the act or default of the other party.
11.2. Each party shall be entitled to use the Confidential Information of the other party only in connection with the performance of its obligations under this Licence and not otherwise or for its benefit or the benefit of any Third Party.
11.3. Each of the parties undertakes to the other to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this clause 11 by its employees agents and sub-contractors. The Customer shall remain principally liable for any breaches of the obligations in this clause Error! Reference source not found. by its employees, agents or sub-contractors.
11.4. Neither party may use the name of the other in any advertising or publicity relating to the Licensed Programs without the prior written consent of the other, save that RLDatix may use the name of the Customer for promotional purposes in any announcement made within six months of the Commencement Date or in any list of users used by RLDatix.
11.5. The Customer acknowledges and agrees that, where the Customer receives an information request under the Freedom of Information Act 2000 (“FOIA”) in connection with this Licence, the Customer will immediately notify the same to RLDatix, and, where the information request refers to RLDatix’s commercially sensitive information or Confidential Information, the Customer will allow RLDatix sufficient time to raise an objection to the extent, type and/or nature of disclosure requested, and will work with RLDatix to agree the form of disclosure.
11.6. RLDatix is not itself subject to the FOIA but shall assist and cooperate with the Customer to enable it to comply with its disclosure obligations under the FOIA.
11.7. Where RLDatix receives a request for information under the FOIA which relates to this Licence which does not refer to RLDatix’s commercially sensitive information or Confidential Information, RLDatix will not respond to that request (unless directed to do so by the Customer) and will use its best endeavours to transfer the request to the Customer within two Business Days) .
11.8. With the exception of RLDatix’s commercially sensitive information or Confidential Information, RLDatix agrees that this Licence and any recorded information held by RLDatix on the Customer’s behalf for the purposes of this Licence are subject to the obligations and commitments of the Customer under the FOIA.
11.9. RLDatix agrees that, save in respect of RLDatix’s commercially sensitive information or Confidential Information, the decision on whether any other exemption to the general obligations of public access to information applies to any request for information received under the FOIA is a decision solely for the Customer.
11.10. RLDatix acknowledges that the Customer, acting in accordance with the codes of practice issued and revised from time to time under section 45 of FOIA, may disclose information concerning RLDatix and this Licence, save for RLDatix’s commercially sensitive information or Confidential Information.
11.11. RLDatix agrees to assist the Customer in responding to a request for information, by processing information (as defined in FOIA) in accordance with a records management system that complies with all applicable records management recommendations and codes of conduct issued under section 46 of FOIA, using reasonable endeavours to provide copies of all information requested by the Customer which is not exempted within five Business Days of that request and without charge.
11.12. The Customer consents, unless such consent is withdrawn by written notice to RLDatix, to RLDatix disclosing for marketing purposes that the Customer is a customer of RLDatix in respect of the Licensed Programs and agrees that RLDatix may identify the Customer in its published list of clients.
11.13. RLDatix may use a mutually agreed upon general description of the nature of the software and services provided to the Customer by RLDatix in RLDatix's promotional materials, website, presentations and proposals to other current and prospective clients.
11.14. RLDatix may use the name of the Customer in its promotional materials and website. The Customer agrees to allow RLDatix to issue a press release at its discretion regarding the RLDatix-Customer relationship following execution of the Agreement.
12. STAFF
12.1. The Customer shall not, during the period of the Agreement and within one year after the date of its termination, knowingly employ or make any offer of employment or assist any other person to employ or make any offer of employment to any person who is at the time of the offer employed by RLDatix or has been employed by RLDatix during the twelve months leading up to the date of termination. This limitation shall not apply to an employee who applies for an advertised position with the Customer which is not brought to the employee’s attention by or on behalf of the Customer. Any breach of this provision shall be a fundamental breach of the Agreement entitling RLDatix to terminate the Agreement forthwith and the Customer shall indemnify RLDatix against all claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) which RLDatix may suffer as a result of such breach.
13. WARRANTIES AND LIABILITY
13.1. The following provisions set out RLDatix's entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer (except in respect of the Hosting Services, liability for which is set out in the Terms and Conditions).
13.2. RLDatix warrants that the Licensed Programs:
13.2.1. have been created, and that the Customer-Support will be provided, using reasonable skill and care; and
13.2.2. will on the Commencement Date operate materially in accordance with the Operating Instructions.
13.3. RLDatix does not warrant that the use of the Licensed Programs will meet the Customer's data processing requirements or that the operation of the Licensed Programs (including where in machine-readable form the Operating Instructions) will be uninterrupted or error free.
13.4. All warranties, conditions, guarantees, rights and remedies not set out in this Licence whether implied by any applicable statute or otherwise are excluded to the maximum extent permitted by law.
13.5. The Customer acknowledges that:
13.5.1. it will comply with all laws, rules and regulations (including any rules, codes of conduct or regulations which apply to the Customer’s particular business or industry);
13.5.2. the Licensed Programs have not been prepared to meet the Customer’s individual requirements;
13.5.3. it is the Customer’s responsibility to ensure that the Licensed Programs are fit for the Customer’s purposes and will perform adequately with any other software or program which the Customer uses;
13.5.4. it is solely responsible for the content of any reports which are generated by the Licensed Programs and that it is the Customer’s responsibility to ensure that reports generated are adequate for the Customer’s needs and purposes; and
13.5.5. any data which is inputted by the Customer into any database operated by the Licensed Programs shall be in accordance with any instructions given by RLDatix, and shall be inputted accurately and properly.
13.6. In the event of a breach by RLDatix of the warranties in clause 13.2 then, without prejudice to the remainder of this clause 13, and provided that the Customer has complied in all respects with the terms of this Licence, RLDatix shall (at RLDatix’s option):
13.6.1. repair the Licensed Programs; or
13.6.2. renew the provision of the Customer-Support; or
13.6.3. replace the Licensed Programs; or
13.6.4. refund the purchase price of the defective Licensed Programs, in which event this Licence shall automatically terminate;
provided that in any such case the Customer notifies RLDatix of the breach within fourteen days after the Commencement Date (or the date of the defective Customer-Support, as relevant).
13.7. Subject to clause 13.8, clause 13.6 sets out the Customer’s sole remedy for a breach of the warranties in clause 13.2.
13.8. Nothing in this Licence shall limit or exclude RLDatix’s liability for:
13.8.1. death or personal injury caused by the negligence of RLDatix or its officers, employees, contractors or agents;
13.8.2. fraud or fraudulent misrepresentation; or
13.8.3. any other liability which may not be excluded by law.
13.9. Subject to clause 13.8, RLDatix’s liability for damage to or loss of physical property shall not exceed £30,000 (thirty thousand pounds) in respect of any one event or series of connected events giving rise to a claim for any such damage or loss.
13.10. Subject to clause 13.8 and without prejudice to clauses 13.9 and 13.11, RLDatix's liability arising in connection with all claims arising under or pursuant to this Licence during any complete twelve month period commencing on the date of this Licence, or any anniversary thereof, however arising whether in contract, tort (including negligence) or otherwise shall not in any such period exceed an amount equal to 125% of the then current Annual Charge.
13.11. Subject to clause 13.8, RLDatix shall not be liable under or in relation to this Licence (whether such liability arises due to negligence, breach of contract, misrepresentation or otherwise) for any:
13.11.1. indirect, special or consequential loss or damage;
13.11.2. any form of exemplary or incidental loss or damages;
13.11.3. loss of profits or anticipated profit;
13.11.4. loss of sales, business, customers or revenue;
13.11.5. loss of goodwill or damage to reputation;
13.11.6. loss of contract;
13.11.7. loss of savings or anticipated savings;
13.11.8. loss of opportunity;
13.11.9. loss or corruption of data;
13.11.10. any loss or damage arising as a result of any loss of or corruption to data (whether temporary or permanent);
13.11.11. any loss or damage arising out of an inability to restore data due to the loss of or damage to any encryption key by the Customer;
13.11.12. loss or damage relating to or arising from any reliance on any report or data which is entered into or extracted out of the Licensed Programs by the Customer; or
13.11.13. loss or damage relating to or arising from reliance on the Licensed Programs by the Customer to meet any of the Customer’s legal obligations under any law or regulation (including, without limitation, health and safety law).
13.12. Subject to clause 13.8, RLDatix shall not be liable in respect of any breach of this Licence or for any representation, statement or tortious act or omission:
13.12.1. which results from any breach of this Licence by, or any negligent act or omission of, the Customer; and/or
13.12.2. unless the Customer shall have served notice of the same upon RLDatix within six months of the date it became aware of it or the date when it ought reasonably to have become so aware; and/or
13.12.3. to the extent RLDatix remedies any breach of this Licence within six months after being notified by the Customer of the breach.
13.13. The Customer acknowledges that the provisions of this clause 13 are, taking into account all the circumstances and the ability of the parties to obtain insurance, reasonable in every respect.
13.14. The provisions of this clause 13 shall survive any termination of this Licence.
14. TERMINATION
14.1. The Agreement shall continue unless or until terminated (without any liability on RLDatix to make any refund to the Customer unless expressly provided otherwise in the Agreement) in one of the following ways which are the only ways in which the parties may terminate the Agreement:
14.1.1. by either party at any time on or after the fifth anniversary of the Commencement Date (or such other period as may be specified in the Order Form) upon giving not less than three months' notice in writing to the other party expiring on an anniversary of the Commencement Date;
14.1.2. forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is or could be appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or anything equivalent to any of the events or circumstances stated in this clause 14.1.2 occurs in any applicable jurisdiction;
14.1.3. immediately by RLDatix if the Customer fails to pay any sum due hereunder within sixty days after the due date for payment or commits any other material breach of the Agreement (or, if RLDatix considers the breach is capable of remedy, if the Customer fails to remedy a material breach within fourteen days after being notified in writing to do so);
14.1.4. pursuant to any other right of termination contained in the Agreement; or
14.1.5. immediately by RLDatix where any agreement for the provision of any support services relating to the Licensed Programs, whether provided by RLDatix or by any distributor or supplier of the Licensed Programs to the Customer, terminates or expires.
14.2. Within thirty days of the termination of the Agreement (howsoever and by whomsoever occasioned) the Customer shall destroy all copies of the Licensed Programs and Operating Instructions in its possession and a duly authorised officer of the Customer shall certify in writing to RLDatix that the Customer has complied with such obligation and RLDatix (or any representative of RLDatix appointed at RLDatix’s discretion) shall be entitled to inspect the Customer's premises to ensure that this clause 14.2 has been complied with.
14.3. Termination of the Agreement includes termination of the provision of the Hosting Services as referred to in the Terms and Conditions. The Hosting Services can be terminated in accordance with the Terms and Conditions without also having to terminate the Agreement.
14.4. Any termination of the Agreement pursuant to the terms hereof shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
15.1. Each party shall retain ownership of its own Existing IPRs.
15.2. RLDatix shall be entitled to all property, copyright and other IPRs arising out of or in connection with the Licence and/or the Licensed Programs (including the use thereof by the Customer) during this Licence (“New IPRs”) and which New IPRs the Customer hereby, as beneficial owner, assigns with full title guarantee (and by way of present assignment of future copyright) absolutely to the fullest extent possible to RLDatix.
15.3. The Customer shall procure that, where relevant, all moral rights in respect of the New IPRs are waived by the relevant Third Parties and at the request and reasonable expense of RLDatix, shall do and/or shall procure that its consultants employees agents contractors and sub-contractors shall do all such things and sign all such documents or instruments necessary in the opinion of RLDatix to enable RLDatix to obtain defend and enforce its rights in the New IPRs.
15.4. The Customer agrees that RLDatix shall be entitled to use any know-how, ideas, methods, processes or techniques which relate to any developments arising out of the provision of or in connection with this Licence for the purposes of RLDatix’s business from time to time provided that RLDatix does not use any Confidential Information belonging to the Customer for that purpose.
15.5. The provisions of this clause 15 shall survive the expiry or termination of this Licence.
16. DATA PROTECTION
16.1. The parties recognise that RLDatix may process personal data that comes into its possession as a result of or in connection with its performance of its obligations under the Licence (the “Personal Data”) and that such processing must be in accordance with the “Data Protection Laws”).
16.2. Any terms used in this Agreement that are defined in the Data Protection Laws shall have the meaning given to them in such laws, including, without limitation, “controller”, “processor”, “personal data” and “processing”.
16.3. To the extent that RLDatix is providing services to the Customer, the parties agree that the Customer is a Controller and that RLDatix is a Processor for the purposes of processing Customer Personal Data pursuant to the Agreement.
16.4. RLDatix is permitted to authorise any Contractor identified in the Privacy Policy to process Customer Personal Data in connection with the services.
16.5. Subject to Clause 16.4, RLDatix shall not permit any processing of Customer Personal Data by any agent or subcontractor or other Third Party (“Sub-Processor”) without the prior written authorisation of the Customer and provided that RLDatix informs the Customer of any changes it has made and permitting the Customer to object to those, and RLDatix remains fully liable for all the actions and omissions of the Sub-Processor and that any Sub-Processor agrees in writing to comply with obligations at least equivalent to those obligations imposed on RLDatix in this Clause 16 that relate to the requirements laid down in Article 28(3) of the GDPR.
16.6. RLDatix shall:
16.6.1. process the Customer Personal Data only on the documented instructions from time to time of the Customer including as described in the Agreement; and
16.6.2. subject to Clause 16.7, not transfer, or otherwise directly or indirectly disclose, any Customer Personal Data to countries outside the United Kingdom (UK) or the European Economic Area (EEA) without the prior written consent of the Customer except where RLDatix is required to transfer the Customer Personal Data by the laws of the UK or of the laws of any member state of the EU or EU law (and shall inform the Customer of that legal requirement before the transfer, unless those laws prevent it doing so).
16.7. RLDatix shall be permitted to transfer Customer Personal Data to any country which is not within the EEA or is not the UK (“non-EEA”) to the extent that the countries are identified in the Privacy Policy or the Customer has otherwise consented in writing to the transfer to a particular country and any one or more of the following applies:
16.7.1. RLDatix has in place with the non-EEA Sub-Processor the EU model contractual clauses as set out in Decision 2010/87/EU or any alternative version of those clauses issued by the European Commission or a supervisory authority from time to time;
16.7.2. the transfer is to a non-EEA country that is deemed to have an adequate level of protection from time to time by the European Commission or such other supervisory authority;
16.7.3. to the extent that the transfer is to a RLDatix group company in a non-EEA country, RLDatix’s group has in place Binding Corporate Rules for the transfer of the Customer Personal Data;
16.7.4. there is an approved code of conduct in place by an association or other body representing the Customer or RLDatix that applies to the non-EEA territory or territories to which the Customer Personal Data is to be transferred;
16.7.5. there is an approved certification mechanism in place in respect of the non-EEA territory; or
16.7.6. to the extent that the transfer is to an entity located in the United States, such entity participates in the EU-US Privacy Shield or such other mechanism that may replace or supersede it from time to time.
16.8. RLDatix shall ensure that access to Customer Personal Data is limited to those persons and authorised Sub-Processors who need access to it to supply the services and who are subject to an enforceable obligation of confidence with regards to the Customer Personal Data.
16.9. Taking into account the state of technical development and the nature of processing, RLDatix shall implement appropriate technical and organisational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration and unauthorised disclosure or access.
16.10. RLDatix shall, taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, in relation to any request from any data subject for: access, restriction, rectification or erasure of Controller Personal Data, or any complaint, objection to Processing, or other correspondence (“Data Subject Request”).
16.11. RLDatix shall notify the Customer without undue delay and in writing if any Customer Personal Data has been disclosed in breach of this Clause 16.
16.12. RLDatix shall notify the Customer promptly if it becomes aware of a breach of security of Customer Personal Data, such notices shall include full and complete details relating to such breach.
16.13. RLDatix shall provide such assistance (at the Customer’s cost) as the Customer may reasonably require in relation to the need to undertake a data protection impact assessment in accordance with Data Protection Law.
16.14. RLDatix shall provide such assistance (at the Customer’s cost) as the Customer may reasonably require in relation any approval of the Information Commissioner or other data protection supervisory authority to any processing of Customer Personal Data (“Privacy Agency Requests”).
16.15. RLDatix shall following the expiry or termination of the Agreement and in accordance with the Privacy Policy, at the Customer’s cost and its option either return all of the Customer Personal Data (and copies of it) or securely dispose of the Customer Personal Data except to the extent that any applicable law requires RLDatix to store such Customer Personal Data.
16.16. At the Customer’s cost, RLDatix shall allow for an audit (no more than once per annum) by the Customer and any auditors appointed by it in order for RLDatix to demonstrate its compliance with this Clause 16. For the purposes of such audit, upon reasonable notice, RLDatix shall make available to the Customer and any appointed auditors all information that the Customer deems necessary (acting reasonably) to demonstrate RLDatix’s compliance with this Clause 16.
16.17. In RLDatix’s reasonable opinion, to the extent that it believes that any instruction received by it in accordance with Clause 16.6.1 is likely to infringe Data Protection Law or any other applicable law, RLDatix shall promptly inform the Customer and shall be entitled to withhold its permission for such audit and/or provide the relevant services until the Customer amends its instruction so as not to be infringing.
16.18. To the extent that the Customer collects and passes Personal Data to RLDatix pursuant to the Agreement, it represents, warrants and undertakes that:
16.18.1. it has obtained appropriate authority from all data subjects to whom it relates, or has provided them with the requisite information required under Data Protection Law, to pass their Personal Data to RLDatix for the purposes for which the Customer intends to use it and/or as specified by the Customer in writing;
16.18.2. there is a legal basis in accordance with Data Protection Law to pass the Personal Data to RLDatix for the purposes described in the Privacy Policy, and
16.18.3. it is accurate and up to date.
16.19. To provide billing and administration services, RLDatix may process Service Attributes in the region(s) where the Customer uses the Service Offerings. To provide the Customer with support services initiated by the Customer and investigate fraud, abuse or violations of the Agreement, RLDatix may process Service Attributes wherever RLDatix or the Contractor maintains support and investigation personnel.
16.20. RLDatix shall be entitled to charge the Customer at its then current professional services rates for any time spent in connection with the Privacy Agency Requests, Data Subject Requests or similar requests or providing information required by the Customer to comply with their obligations under Data Protection Law.
16.21. The parties shall adhere to the description of processing as described in Schedule 2 or the Order Form and acknowledge and agree that this is an accurate description of the processing pursuant to this Agreement.
16.22. The Customer agrees to indemnify and keep indemnified and defend RLDatix against all costs, claims, damages or expenses incurred by RLDatix or for which RLDatix may become liable as a result of the Customer’s breach of any of the provisions of this Clause 16.
16.23. During the term of the Agreement, RLDatix may process Personal Data of which the Customer is the data controller for the purpose of the Implementation Services, the Hosting Services, or otherwise in order to comply with its obligations under the Agreement.
16.24. RLDatix may process Personal Data about Permitted Users and other data subjects and users of the Licensed Programs as described in Service Level Agreement, the Order Form and/or the Privacy Policy).
16.25. This clause 16 shall survive expiry or termination of the Licence until all Personal Data are returned or disposed of, except to the extent that any applicable law requires RLDatix to store such Personal Data and RLDatix has promptly demonstrated their legal requirements to the Customer.
17. ORDER OF PRECEDENCE
17.1. If there is a contradiction or inconsistency between any documents or provisions contained in the Agreement, it shall be resolved by giving precedence to those documents or provisions in the following order:
17.1.1. first, the clauses in this Licence;
17.1.2. secondly, the Terms and Conditions;
17.1.3. thirdly, the other Schedules; and
17.1.4. fourthly, the Order Form.
18. FORCE MAJEURE
18.1. No failure or delay by either party to perform its obligations in accordance with this Licence (other than the obligation to pay the Charges) shall give rise to any claim by the other or be deemed a breach of any obligation under this Licence if such failure or delay results directly from an event of Force Majeure.
19. NOTICES
19.1. Any notice or other communication to be given under this Licence shall be in writing and shall be deemed to have been duly served on a party if it is left at the authorised address of that party or posted by pre-paid first class post addressed to that party at such address and shall if:
19.1.1. personally delivered, be deemed to have been received at the time of delivery, provided that where delivery occurs after 5.00 pm on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9.00 am on the next following Business Day; or
19.1.2. posted to an inland address in the United Kingdom, be deemed to have been received on the second Business Day after the date of posting.
19.2. For the purposes of clause 19.1, the authorised address of RLDatix shall be its registered office for the time being and, in the case of the Customer, the address as set out in the Order Form. Either party may notify the other party in writing from time to time of a change in its authorised address to another address in the UK provided that notice of that change is given in accordance with the requirements of clause 19.1.
19.3. Whilst the parties may make operational communications concerning this Licence via electronic mail, formal notices may not be validly served under this Licence by electronic mail.
20. WAIVER
20.1. The waiver by either party of a breach or default of any of the provisions of this Licence by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions of this Licence nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
21. ENTIRE AGREEMENT
21.1. The Agreement constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter. The Agreement and the documents referred to in it shall supersede and take precedence over any purchase order or other document submitted by the Customer setting out or referring to any contractual conditions, all of which are hereby excluded.
21.2. Each party acknowledges that, in entering into the Agreement, it is not relying on, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party to the Agreement, which are not expressly set out in the Agreement.
21.3. Nothing in the Agreement shall exclude or limit the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.
22. SUCCESSORS
22.1. This Licence shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
23. ASSIGNMENT
23.1. The Customer shall not be entitled to assign this Licence nor all or any of its rights and obligations, hereunder without the prior written consent of RLDatix.
24. RIGHTS OF THIRD PARTIES
24.1. The Contract (Rights of Third Parties) Act 1999 shall not apply to this Licence. A person who is not a party to this Licence shall not be entitled to enforce any term of this Licence which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties. Any such agreement by the parties must refer to this clause 24.
25. SEVERABILITY
25.1. If any clause in this Licence, or any part of a clause, is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, and the clause (or part-clause) in question is not of a fundamental nature to this Licence as a whole, the legality, validity or enforceability of the remainder of this Licence (including the remainder of the clause which contains the relevant provision) shall not be affected.
25.2. If the foregoing applies, the parties shall use all reasonable endeavours to agree upon any lawful and reasonable variations to this Licence which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the clause, or the part- clause, in question.
26. VARIATIONS
26.1. RLDatix shall be entitled to make such reasonable amendments to the terms of this Licence as may be necessary from time to time to ensure RLDatix’s and this Licence’s continuing compliance with any applicable legislation, law, regulation, code of practice, agreement with any Third Party and/or licence condition. Any such changes shall take effect on notification to the Customer.
26.2. Without prejudice to clause 26.1, RLDatix shall at any time be entitled to amend the terms set out in this Licence for any reason upon provision of no less than thirty days’ written notice to the Customer.
26.3. Save in respect of clauses 26.1 and 26.2 above, no variation of this Licence shall be valid unless it is in writing and signed by or on behalf of each of the parties.
27. IMPORT/EXPORT CONTROLS
27.1. Where the Customer is not located in the United Kingdom, the Customer will be deemed to be the importer and/or exporter of record in connection with the Licensed Programs. The Customer will be responsible for payment of all import and/or export duties (as apply in the circumstances) in connection with the supply of the Licensed Programs to the Customer, and the Customer will comply with all applicable export and import laws, regulations and orders from time to time in force.
28. ANTI BRIBERY AND MODERN SLAVERY
28.1. Each of RLDatix and the Customer shall comply with:
28.1.1. all applicable anti-slavery and human trafficking laws from time to time in force including the Modern Slavery Act 2015; and
28.1.2. all applicable laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
29. LAW AND JURISDICTION
29.1. The 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 laws of England and Wales.
29.2. Each party irrevocably agrees (subject to clause 29.3) that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
29.3. Notwithstanding clause 29.2 above, in the event that the Customer’s registered office and/or principal place of business is outside the European Union, any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with those Rules. The seat of arbitration will be London and the language of the arbitration will be English.
Schedule 1: Service Level Agreement for Customer Support
1. The RLDatix Service Desk is available 9:30am to 5:00pm UK Time, Monday to Friday, except UK public holidays for application queries on 02089711963 or support@rldatix.com.
2. The purpose of the Service Desk is primarily to enable the Customer’s nominated contact to access technical help in the event that the Customer encounters any Faults in the Licensed Programs which prevent the Licensed Programs from running, including configurations and customisations made to the Licensed Programs by RLDatix under the terms of the Licence.
3. RLDatix normally limits support to named individuals within an organisation and only queries from these individuals will be accepted. The Customer’s nominated contact is expected to have been trained in the RLDatix software and to be familiar with the Operating Instructions and with Microsoft Windows.
4. RLDatix recommends that details of any suspected Faults are emailed to the address above. The Customer may also be asked to provide a more detailed description of the problem or to conduct certain investigations.
5. All requests for support are logged and allocated a call reference number. The Customer will receive an acknowledgement by email that their request has been logged and details of the priority which has been assigned to it. This will normally be done within three working hours of receipt of the request. If the suspected fault is a Priority 1 (see the table below) you should telephone RLDatix.
6. Where the Fault is that the Licensed Programs do not run at all, or run more slowly than usual, this is almost always due to some change or failure in the Customer’s operating environment or hardware for which RLDatix is not responsible. You should therefore check first with your IT department or other support service and advise RLDatix in your support request of the contact person in your IT department who is dealing with the matter and the results of any checks that he or she has carried out.
7. Suspected Faults are prioritised and allocated to a RLDatix support analyst. The suspected Fault may be tested against the replica of the Licensed Programs maintained by RLDatix for this purpose or any support copy maintained at the Customer’s site (“Support Copy”).
8. RLDatix will not be able to resolve suspected Faults which cannot be repeated or replicated on the replica or Support Copy. These will be presumed to be attributable to non-RLDatix software.
9. When a Fault has been accepted by RLDatix as a Fault in the RLDatix Licensed Programs or as requiring further investigation before such a determination can be made, RLDatix will allocate it a priority. The priority is assessed according to the effect of the problem on the Licensed Programs and its Permitted Users in accordance with the Support Response Times set out below.
10. RLDatix support is not intended as a substitute for training or for dealing with matters which are dealt with in the Operating Instructions. However, as a discretionary service and not as a matter of obligation, the Service Desk may be available to answer queries of the “How do I ?” Type.
11. RLDatix provides a chargeable service for dealing with support requests that are not covered by your contract. This service can be accessed by contacting the Service Desk in the normal way.
12. At RLDatix, we are constantly improving our products. Our aim is to make them easier to use, which will increase efficiency and deliver more benefits for your organisation. If you have a suggestion for the RLDatix software, you may request a suggestion form by contacting the service desk in the usual manner.
13. For the purpose of providing the Licensed Programs and the services described in this Service Level Agreement, RLDatix may process contact data, identification data, behavioral data and/or account data about Permitted Users from time to time.
14. RLDatix may process further categories of Personal Data about data subjects in connection with Implementation Services or Hosting Services as described in the Order Form or the Privacy Policy respectively.
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Schedule 2: Description of Processing
The processing of Personal Data is as follows:
Data subjects
The Personal Data concern the following categories of data subjects:
RLDatix may process Personal Data of which the Customer is the data controller.
RLDatix may process Personal Data about Permitted Users and other data subjects and users of the Licensed
Programs as described in Service Level Agreement, the Order Form and/or the Privacy Policy.
Purposes of the Processing
RLDatix may process Personal Data of which the Customer is the data Controller for the purpose of the Implementation Services, the Hosting Services, or otherwise in order to comply with its obligations under the Agreement.
RLDatix may process Personal Data about Permitted Users and other data subjects and users of the Licensed Programs as described in Service Level Agreement, the Order Form and/or the Privacy Policy.
Sub processors
The list of sub processors used can be found here.
https://rldatix.com/en-uke/rldatix-product-privacy-policy/
Categories of data
The Personal Data processed fall within the following categories of data:
RLDatix may process Personal Data stored by the Customer as the Data Controller which may include the following categories of data : salutation, names, addresses, email addresses, phone numbers, dates and details of events including birth, death, feedback and claims.
RLDatix may process the following categories of data about Permitted Users and other data subjects and users of the Licensed Programs: name, business email addresses, business phone numbers, salutation, job title and/or role.
Sensitive data
RLDatix may process sensitive information stored by the Customer as the Data Controller which may include the following categories of sensitive data : race; ethnic origin; politics; religion; trade union membership; genetics; biometrics (where used for ID purposes); health; sex life; sexual orientation; criminal convictions; criminal offences; alleged criminal activity.
Instructions with regards to the processing of Personal Data:
RLDatix shall process Personal Data only in accordance with terms of the Licence and this Agreement and the instructions received in writing by the Customer from time to time.
Schedule 3: Terms & Conditions For Hosted Service
Applicable for Customers purchasing RLDatix’s Hosted Service
1. DEFINITIONS AND INTERPRETATION
1.1. In these Terms and Conditions (defined below), the following words have the following meanings:
“Acceptable Use Policy” means the acceptable use policy applicable to the Services located on the RLDatix Website, as it may be updated by RLDatix from time to time.
“Account Information” means information about the Customer that the Customer provides to RLDatix in connection with the creation or administration of the Customer’s account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with the Customer’s account.
"Business Day" means 9:30 a.m. to 5:00 p.m. on any day which is not a Saturday, Sunday or bank or other public holiday in England and Wales.
"Change in Law" means any change in any law, enactment, order, regulation, directive, code of practice or other similar instrument occurring after the date of the Order Form affecting RLDatix and suppliers of services which are the same or similar to the Services and which results in an increase in the cost to RLDatix of providing the Services.
"Commencement Date" means the date on which RLDatix first provides the Customer with access to the Services as notified to the Customer by RLDatix.
"Confidential Information" means these Terms and Conditions along with any and all information or materials (including operations, plans, market opportunities, Customers, know-how (including designs, processes of production and technology), trade secrets and software) in any form or medium (whether written, oral, visual or electronic) disclosed directly or indirectly by either party or its employees or representatives to the other in connection with this or which is of a confidential or proprietary nature or is received in circumstances in which the receiving party knows or should know that the information is confidential.
“Content” means software (including machine images), data, text, audio, video or images.
"Customer" means the entity to which the Order Form is addressed but shall not include any parent, group, affiliated or related undertakings unless otherwise agreed in writing by RLDatix.
“Customer Content” means Content that a Customer or any End User transfers to RLDatix for processing, storage or hosting by the Services in connection with the Customer’s account and any computational results that a Customer or any End User derive from the foregoing through their use of the Services. Customer Content does not include Account Information.
“Customer Dependency” means any obligation upon the Customer under these Terms and Conditions from time to time, upon which RLDatix is to any extent reliant in order to allow RLDatix or the Hosting Provider or their respective subcontractors to roll out, provide or decommission any Service.
“Cyber Attack” means a cyber-security threat or attack (including a virus attack) or a data security breach.
"RLDatix" means Datix Limited (trading as RLDatix) (company number 02046379) of Swan Court, 11 Worple Road, Wimbledon, London, SW19 4JS.
“RLDatix Content” means Content RLDatix or any of RLDatix’s affiliates make available in connection with the Services to allow access to and use of the Services; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by RLDatix’s personnel). RLDatix Content does not include the Services or Third Party content.
“RLDatix Website” means www.rldatix.com (and/or any successor or related site designated by RLDatix).
“Documentation” means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located on the RLDatix Website, as such user guides and admin guides may be updated by RLDatix from time to time.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Customer Content; or (b) otherwise accesses or uses the Service Offerings under the Customer’s account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own account with the Hosting Provider, rather than under the Customer’s account.
"Equipment" means any equipment used in the provision of the Services and installed at the Hosting Provider's premises and owned by the Hosting Provider or a Third Party provider.
“Fault” means a technical issue within RLDatix’s control which prevents the Customer from fully accessing the Service.
"Force Majeure" means any event which is beyond the control of a party or which it would not be reasonable to expect a party to control, including acts of God, labour disputes or other industrial disturbances, electrical or power outages, failure of the Hosting Provider or other suppliers, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
"Hosting Charges" means the charges payable by the Customer to RLDatix in respect of the Services (including any set-up charges) as more particularly described in the Order Form.
“Hosting Provider” means any Third Party service provider used by RLDatix (on a subcontracting basis) to provide the Services.
"Intellectual Property Rights" or “IPRs” means intellectual property rights and industrial property rights of any nature whatsoever including without limitation patents, patent applications, copyright, know-how, technical and commercial information, designs and design rights (whether registered or unregistered), internet domain names, database rights, trade marks, service marks or business names, applications to register any of the aforementioned rights, trade secrets and rights of confidence, in each case in any part of the world and whether or not registered or registerable.
"Licence" means the licence terms and conditions under the heading RLDatix Software Licence together with Schedule 1 to the licence terms and conditions and any other documents expressly incorporated by reference.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
"Minimum Term" means the minimum period of sixty months from and including the Commencement Date or such other period as may be stated in the Order Form.
“Monitoring Requirements” means any and all laws, enactments, orders, regulations, directives, codes of practice or other similar instruments (whether voluntary or compulsory) which are relevant to the Services provided by RLDatix and/or the Hosting Provider and/or their respective subcontractors under these Terms and Conditions from time to time and which relate to the recording, interception, storage and/or disclosure of data for the purposes of safeguarding national security and/or preventing or detecting of crime and/or prosecution of offenders, including the Regulation of Investigatory Powers Act 2003, the Terrorism Act 2000, the Data Retention (EC Directive) Regulations 2009, and the Retention of Communications Data (Code of Practice) Order 2003 and any requirements with similar effects that exist from time to time.
“Notice Period” means the notice period required to be given to terminate the Services as set out in Clause 14.1.
"Operating Instructions" means the whole or any part of the instructions and procedures contained within or relating to the Services.
“Policies” means the Acceptable Use Policy, the Privacy Policy, the terms of use of the RLDatix Website and any other policy or terms referenced on the RLDatix Website or incorporated into these Terms and Conditions.
“Privacy Policy” means the privacy policy on the RLDatix Website, as it may be updated by RLDatix from time to time.
“Order Form” means any quotation issued by RLDatix relating to the Services and which is accepted by the Customer.
"Services" means the services and Software (and/or any of them) to be provided or to which access is given by RLDatix or RLDatix’s affiliates to the Customer as specified in any applicable documents forming part of these Terms and Conditions.
“Service Attributes” means Service usage data related to the Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
"Service Level" means the service levels specified in the Service Level Agreement.
"Service Level Agreement" means the service level agreement applicable to the Services as set out at the end of these Terms and Conditions, as such agreement may be updated by RLDatix from time to time.
“Service Offerings” means the Services, the RLDatix Content, and any other product or service provided by RLDatix under these Terms and Conditions.
“Software” means the online and mobile software applications provided or made available by RLDatix as part of the Services.
"Term" means the period during which the Services will be provided to the Customer commencing on the Commencement Date and ending when terminated in accordance with Clause 14.
“Terms and Conditions” means all the provisions set out in this Schedule 3 including these terms and conditions set out together with the Services Description, the Service Level Agreement and any other documents set out or expressly referred to in any of those documents.
“Third Party” means any person other than RLDatix and the Customer.
“VAT” means value added tax and any other tax of any jurisdiction based on sales of goods or services such as sales taxes and any similar, replacement or additional tax.
“Year” means the period of twelve months starting on the Commencement Date and each successive period of twelve months starting on each anniversary of the Commencement Date.
1.2. In these Terms and Conditions:
1.2.1. words denoting the singular include the plural and vice versa;
1.2.2. words denoting any gender include all genders;
1.2.3. reference to any person includes a reference to any natural person, company or unincorporated body (whether or not having separate legal personality) and all types of legal entity;
1.2.4. any reference to a statute, statutory provision, subordinate legislation or code of practice is a reference to that statute, statutory provision, subordinate legislation or code of practice as amended, modified or re-enacted from time to time including all legislation superseding legislation that formerly implemented any European Union legislation notwithstanding that such new legislation may no longer implement any European Union legislation;
1.2.5. any reference to a regulatory body includes a reference to any successor or replacement regulatory body;
1.2.6. any use of the word "include" or "including" or “in particular” shall be deemed followed by the words "without limitation";
1.2.7. without prejudice to Clause 24.3, a reference to “writing” or “written” does not include email; and
1.2.8. any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.3. Headings are for convenience only and shall not affect the interpretation of these Terms and Conditions.
1.4. References in these Terms and Conditions to Clauses are to Clauses of these Terms and Conditions unless otherwise specified.
2. PROVISION AND USE OF THE SERVICES
2.1. RLDatix shall provide the Services to the Customer, using the Hosting Provider, for the applicable Term with reasonable skill and care and in accordance with the Service Level Agreement.
2.2. RLDatix does not warrant that the use of the Services will meet the Customer's data processing requirements or that the Services will be uninterrupted or error free.
2.3. The Customer shall ensure that it complies at all times with all legislation, laws, codes of practice, and licence conditions applicable to its use of the Services, including any applicable obligations under the Data Protection Act 2018, any reasonable policies of RLDatix and/or the Hosting Provider regarding the use of the Services which are advised to it by RLDatix from time to time in writing.
2.4. RLDatix reserves the right to amend, vary or change any Equipment or the Services or the Hosting Provider provided that such amendment, variation or change does not materially and adversely affect the provision of the Services. Where RLDatix reasonably considers that it is necessary to suspend the provision of the Services (or any part of them) (including, without limitation, the provision of the Service to a particular site of the Customer) for the purposes of carrying out amendment, variation, change, repair, maintenance or improvement of or to the Services, and/or Equipment, RLDatix shall use its reasonable endeavours to ensure that the Customer receives reasonable notice of any such work. During the continuance of any such work, RLDatix shall continue to provide the Services in accordance with any applicable Service Level.
2.5. The Customer shall not (and shall not permit any Third Party to):
2.5.1. assign, sub-license, transfer, sell, lease, rent, charge or otherwise deal in the Services nor make available the same to any Third Party nor use the same to provide services to any Third Party, except as may be authorised by RLDatix in writing from time to time (in which case RLDatix reserves the right to increase the Hosting Charges); or
2.5.2. permit any software or other program to be written or developed based on or derived from the Services; or
2.5.3. (subject to any rights expressly conferred upon the Customer by the Copyright, Designs and Patents Act 1988), copy, adapt, reverse-engineer, decompile, disassemble, modify, adapt or make error corrections to the Software, and where the Customer intends to exercise any of its rights under the Copyright, Designs and Patents Act 1988 it shall notify RLDatix of the same so as to provide RLDatix the opportunity to supply alternative information which would achieve the same result for the Customer.
2.6. The Customer must have a high speed internet connection in order to use the Services. The Customer shall procure and maintain the hardware, software and systems that connect the Customer's network to the Services, and shall implement all reasonable communication and security protocols necessary to use the Services.
2.7. The Customer shall not use (nor allow any Third Party to use) the Services:
2.7.1. in a way which is offensive, indecent, menacing, a nuisance or defamatory;
2.7.2. to send, knowingly receive, upload, download, store, display or use any material which is offensive, abusive, indecent, defamatory, obscene or menacing or which is in breach of copyright, confidence, privacy or any other Third Party right;
2.7.3. fraudulently or in connection with the commission of any criminal offence;
2.7.4. to "spam" or to send or provide unsolicited advertising or promotional material or to knowingly receive responses from "spam" or unsolicited advertising or promotional material sent or provided by the Customer or any Third Party acting on its behalf;
2.7.5. in an unlawful manner or in contravention of any legislation, laws, regulations, codes of practice, licence conditions, Third Party rights or any reasonable instructions of RLDatix and/or the Hosting Provider from time to time regarding the use of any Service;
2.7.6. to knowingly upload or make available any virus, other malicious code or corrupt data or otherwise threaten the integrity or security of any computer (including by disclosing passwords); or
2.7.7. in a way that has a material adverse effect on any telecommunications network.
2.8. The provisions of Clause 2.7 shall not apply in respect of any material which is sent, stored or reproduced by the Customer for the legitimate and lawful purposes of the usual business of the Customer. The Customer shall indemnify RLDatix and/or the Hosting Provider against any liability, cost, claim or expense made against RLDatix and/or the Hosting Provider arising out of any breach by the Customer of its obligations pursuant to Clause 2.7.
3. CUSTOMER RESPONSIBILITIES
3.1. Except to the extent caused by RLDatix breaching these Terms and Conditions, (a) the Customer is responsible for all activities that occur under the Customer’s account, regardless of whether the activities are authorised by the Customer or undertaken by the Customer, the Customer’s employees or a Third Party (including the Customer’s contractors, agents or End Users), and (b) RLDatix and RLDatix’s affiliates are not responsible for unauthorised access to the Customer’s account.
3.2. The Customer will ensure that Customer Content and the Customer and End Users’ use of Customer Content or the Service Offerings will not violate any of the Policies or any applicable law. The Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Content.
3.3. The Customer is responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure, protect and backup Customer accounts and Customer Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Customer Content from unauthorised access and routinely archiving Customer Content.
3.4. Log-in credentials and private keys generated by the Services are for Customer internal use only and the Customer will not sell, transfer or sublicense them to any other entity or person, except that the Customer may disclose the Customer’s private key to the Customer’s agents and subcontractors performing work on the Customer’s behalf.
3.5. The Customer will be deemed to have taken any action that the Customer permits, assists or facilitates any person or entity to take related to these Terms and Conditions, Customer Content or use of the Service Offerings. The Customer is responsible for End Users’ use of Customer Content and the Service Offerings. The Customer will ensure that all End Users comply with the Customer’s obligations under these Terms and Conditions and that the terms of the Customer’s agreement with each End User are consistent with these Terms and Conditions. If the Customer becomes aware of any violation of the Customer’s obligations under these Terms and Conditions caused by an End User, the Customer will immediately suspend access to Customer Content and the Service Offerings by such End User. RLDatix does not provide any support or services to End Users unless RLDatix has a separate agreement with the Customer or an End User obligating RLDatix to provide such support or services.
3.6. The Customer acknowledges that failure to fulfil any Customer Dependency in the manner and timescales required under these Terms and Conditions from time to time may prejudice RLDatix’s ability to meet its obligations under these Terms and Conditions. The Customer therefore agrees that RLDatix shall not be liable for any failure by RLDatix to perform its obligations under these Terms and Conditions to the extent caused by the Customer’s failure to ensure that all Customer Dependencies are fulfilled in the manner and timescales required by these Terms and Conditions. Any obligation of RLDatix which is prejudiced by the Customer’s failure to ensure that the all Customer Dependencies are fulfilled in the manner and timescales required by these Terms and Conditions shall be deemed extended by a reasonable time.
3.7. If as a result of the Customer’s failure to ensure that all the Customer Dependencies are fulfilled in the manner and timescales required by these Terms and Conditions RLDatix spends any additional time or incurs any additional costs, it shall be entitled to invoice the Customer for those costs and that time at its then current professional services rates.
3.8. The Customer shall at all times cooperate with RLDatix and/or the Hosting Provider in connection with the provision of the Services. The Customer accepts and shall comply with the Policies. The Customer shall ensure that all End Users shall accept and comply with the Policies.
3.9. Notwithstanding any other term of these Terms and Conditions, RLDatix will not be in breach of these Terms and Conditions to the extent its failure to perform or delay or defect in performance of its obligations under these Terms and Conditions arises as a result of:
3.9.1. any breach by the Customer of its obligations contained in these Terms and Conditions; or
3.9.2. RLDatix relying on any incomplete or inaccurate data provided by, or complying with any instruction or request made by the Customer and/or any of its respective employees or representatives.
3.10. The Customer shall comply with the Acceptable Use Policy and the terms of use of the RLDatix Website.
4. INDEMNIFICATION
4.1. The Customer will defend, indemnify, and hold harmless RLDatix, RLDatix’s affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any Third Party claim concerning: (a) the Customer or any End Users’ use of the Service Offerings (including any activities under the Customer’s account and use by the Customer’s employees and personnel); (b) breach of these Terms and Conditions or violation of applicable law by the Customer, End Users or Customer Content; (c) Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of Third Party rights by Customer Content or by the use, development, design, production, advertising or marketing of Customer Content; or (d) a dispute between the Customer and any End User. The Customer will reimburse RLDatix for reasonable legal fees, as well as RLDatix’s employees’ and contractors’ time and materials spent responding to any legal order or process associated with Third Party claims described in (a) to (d) above at RLDatix’s then-current hourly rates.
5. SUSPENSION
5.1. RLDatix may suspend the provision of the Services (or any part of them) without having any liability to the Customer:
5.1.1. where there is (or RLDatix reasonably suspects there is) any unauthorised access to the Customer's network which may result in unauthorised access to RLDatix and/or the Hosting Provider’s network, in which case the suspension will last until such time as that unauthorised access ceases or is demonstrated by the Customer not to have occurred;
5.1.2. where the Customer is (or RLDatix reasonably believes the Customer is) subject to a Cyber Attack;
5.1.3. in order to take precautions in a situation where the systems of RLDatix, of a Contractor or of other RLDatix customers are at risk of or subject to a Cyber Attack;
5.1.4. in order to carry out emergency technical maintenance to any of RLDatix’s or a Contractor’s systems;
5.1.5. where there is (or RLDatix reasonably suspects there is) any breach by the Customer of any of its obligations under Clause 2.7;
5.1.6. at RLDatix’s discretion provided that RLDatix acts reasonably;
5.1.7. where the Customer or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any Third Party, (ii) could adversely impact RLDatix’s systems, the Service Offerings or the systems or Content of any other RLDatix customer, (iii) could subject RLDatix, RLDatix’s affiliates, or any Third Party to liability, or (iv) could be fraudulent;
5.1.8. where the Customer is, or any End User is, in breach of these Terms and Conditions;
5.1.9. where the Customer is in breach of its payment obligations to RLDatix; and/or
5.1.10. where the Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of the Customer’s assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
5.2. If RLDatix suspends the Customer’s right to access or use any portion or all of the Service Offerings, the Customer shall remain liable to pay the Hosting Charges for all Services during any period of suspension pursuant to Clause 5.1.
5.3. RLDatix reserves the right to suspend or vary the Services (or part of them and whether generally or in respect of the Customer only) where it is required to do so by law, or at the direction of any court or governmental or other regulatory body, or as a result of the loss or revocation of any licence which RLDatix or the Hosting Provider requires to provide the Services (or part thereof) or as a result of a change imposed on RLDatix by any of its suppliers. During the period of any such suspension the Hosting Charges for the suspended Services (or part thereof) will not be payable unless the suspension arises as a consequence of an act or omission of the Customer, its employees or agents or persons authorised by it to use the Services.
6. SERVICE TERMS
6.1. The Customer may only use the Services to store, retrieve, query, serve, and execute Customer Content that is owned, licensed or lawfully obtained by the Customer. As part of the Services, the Customer may be allowed to use certain software (including related documentation) provided by RLDatix or Third Party licensors. This software is neither sold nor distributed to the Customer unless by a specific agreement and the Customer may use it solely as part of the Services. The Customer may not transfer it outside the Services without specific authorisation to do so.
6.2. The Customer must comply with the current technical documentation applicable to the Services (including the applicable developer guides) as posted by RLDatix and updated by RLDatix from time to time on the RLDatix Website. In addition, if the Customer creates technology that works with a Service, the Customer must comply with the current technical documentation applicable to that Service (including the applicable developer guides) as posted by RLDatix and updated by RLDatix from time to time on the RLDatix Website.
6.3. The Customer will provide information or other materials related to Customer Content (including copies of any client-side applications) as reasonably requested by RLDatix to verify the Customer’s compliance with these Terms and Conditions. RLDatix may monitor the external interfaces (e.g., ports) of Customer Content to verify the Customer’s compliance with these Terms and Conditions. The Customer will not block or interfere with RLDatix’s monitoring, but the Customer may use encryption technology or firewalls to help keep Customer Content confidential. The Customer will reasonably cooperate with RLDatix to identify the source of any problem with the Services that RLDatix reasonably believe may be attributable to Customer Content or any End User materials that the Customer controls.
6.4. If RLDatix reasonably believes any Customer Content violates the law, infringes or misappropriates the rights of any Third Party or otherwise violates a material term of these Terms and Conditions (including the Documentation or the Acceptable Use Policy) (“Prohibited Content”), RLDatix will notify the Customer of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If the Customer does not remove or disable access to the Prohibited Content within one Business Day of RLDatix’s notice, RLDatix may remove or disable access to the Prohibited Content or suspend the Services to the extent RLDatix are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, RLDatix may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that RLDatix removes content without prior notice, RLDatix will provide prompt notice to the Customer unless prohibited by law.
6.5. The Customer will ensure that all information the Customer provides to RLDatix (for instance, information provided in connection with the Customer’s registration for the Services, requests for increased usage limits, etc.) is accurate, complete and not misleading.
6.6. From time to time, RLDatix may apply upgrades, patches, bug fixes or other maintenance to the Service Offerings (“Maintenance”). RLDatix agrees to use reasonable efforts to provide the Customer with prior notice of any scheduled Maintenance (except for emergency Maintenance) and the Customer agrees to use reasonable efforts to comply with any Maintenance requirements that RLDatix notifies the Customer about.
7. CHARGES AND PAYMENT
7.1. In consideration for the provision of the Services, the Customer shall pay the Hosting Charges to RLDatix. Any installation charges and the first year's annual Hosting Charges will become due from the Customer on the Customer signing these Terms and Conditions. The annual recurring Hosting Charges will commence on the anniversary of the Commencement Date and on any anniversary thereof. Other Hosting Charges will become due as specified in the Order Form or elsewhere in these Terms and Conditions.
7.2. RLDatix shall be entitled to increase the Hosting Charges:
7.2.1. no more than once in each Year, by an amount which does not exceed the greater of the percentage increase in RPI (as published by the United Kingdom Office for National Statistics from time to time) in the preceding twelve month period or 5% (the first such increase being based on the latest available figure for the percentage increase in RPI at the beginning of the last month before the first anniversary of the Commencement Date); and/or
7.2.2. upon provision of at least thirty days’ written notice in the event of an increase in the costs of labour, materials, fuel, tax, Hosting Provider charges or any other thing outside of RLDatix’s control which results in an increase in the costs of providing the Services.
7.3. All Hosting Charges and other payments which may become due in accordance with these Terms and Conditions are exclusive of VAT which (if applicable) shall be payable by the party making the payment in question at the rate from time to time in force.
7.4. All invoices issued by RLDatix shall be paid by the Customer within thirty days of the date of invoice.
7.5. The Customer must provide any purchase order number or other reference which it wishes to appear on any invoice to be issued by RLDatix at least fourteen days prior to the date on which the invoice in question is to be raised. The Customer shall not be entitled to reject any invoice issued by RLDatix on the ground that it fails to include a purchase order number or other reference where the Customer has failed to notify it to RLDatix in accordance with this Clause 7.5.
7.6. RLDatix shall be entitled to suspend the provision of the Services (or any part of them) without liability to the Customer during any period during which any overdue sums are due to it from the Customer. During any such period of suspension, the Customer shall remain liable to pay the Hosting Charges for the suspended Services.
7.7. Interest shall accrue on all overdue amounts due from one party to the other before as well as after any judgment at a rate of 3% per annum above the base lending rate from time to time of Lloyds TSB Bank Plc.
7.8. Save as provided for by Clause 7.9, the Customer shall not be entitled to make any deduction or withholding from any amount due from it to RLDatix nor shall the Customer be entitled to exercise any right of set-off or counterclaim.
7.9. Where the Customer has a bona fide dispute as to the amount of any invoice issued by RLDatix which it has informed RLDatix of in writing within seven days of the date of the invoice, the Customer shall be entitled to withhold payment of the disputed amount only (provided it pays the undisputed amount in accordance with Clause 7.4) pending resolution of that dispute. Following resolution of that dispute, the Customer shall pay to RLDatix within five days (or before the end of the original period for payment if earlier) any amount which it agrees or is ordered to pay together with interest (if applicable) calculated in accordance with Clause 7.7.
7.10. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under these Terms and Conditions. All payments made by the Customer to RLDatix under these Terms and Conditions will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, the Customer will pay such additional amounts as are necessary so that the net amount received by RLDatix is equal to the amount then due and payable under these Terms and Conditions.
8. CHARGES ADJUSTMENT AND ADDITIONAL COST ITEMS
8.1. In addition to its other rights under this Clause 8 to increase the Hosting Charges in certain specified circumstances, RLDatix shall also be entitled to increase the Hosting Charges for the Services following the expiry of the Minimum Term by serving not less than twenty days' written notice on the Customer. In the event that the Customer does not wish to pay the increased Hosting Charges then it shall within fourteen days of receipt of the relevant notice from RLDatix serve three months written notice to terminate the provision of the Services. During that notice period, the Hosting Charges for the Services shall not include the increase proposed by RLDatix which resulted in the Customer electing to terminate the provision of the Services.
8.2. Where any Hosting Charges are stated to be based on the volume of the Customer's use of the Services (or part thereof) then RLDatix shall be entitled to vary such Hosting Charges at any time in accordance with the Services Description and/or the Order Form to reflect the actual use of the Services (or part thereof) by the Customer from time to time.
8.3. RLDatix shall be entitled to increase the Hosting Charges for any data centre hosting or co-location Service annually on 1 April to reflect any increase in the costs to RLDatix generally of providing that Service since the preceding 1 April. Such cost increases may include increases in rent, rates, taxes, service charges and utility charges. Any increase applied by RLDatix pursuant to this Clause 8.3 shall take into account any increases in the Hosting Charges which have been made by RLDatix in the preceding twelve months in accordance with Clause 8.5.
8.4. In the event that in any Year the actual Hosting Charges payable by the Customer in respect of any hosting or co-location Service would be less than 50% of the value of the highest amount of Hosting Charges paid by the Customer in any preceding Year then the Hosting Charges payable by the Customer for that Year shall be 50% of such higher Hosting Charges instead of the lower actual Hosting Charges.
8.5. In the event of any Change in Law occurring, RLDatix shall be entitled to increase the Hosting Charges to reflect the increased cost to RLDatix of providing the Services as a result of that Change in Law by serving not less than twenty days' written notice of such increase on the Customer.
8.6. At the request of the Customer, RLDatix shall provide to the Customer such reasonable supporting evidence as may be necessary to support any increase to the Hosting Charges made by RLDatix pursuant to Clauses 8.3 to 8.5. Any such evidence provided by RLDatix shall constitute Confidential Information of RLDatix.
9. PREMISES
9.1. Access by the Customer and its representatives to any premises of RLDatix and/or the Hosting Provider for the purpose of auditing the provision of the Services shall at all times be at RLDatix’s discretion and subject to the Customer providing adequate notice and compliance by the Customer with the access and security policies of RLDatix and/or the Hosting Provider for the time being in force. The Customer shall indemnify RLDatix and/or the Hosting Provider against all Losses that RLDatix and/or the Hosting Provider or any of RLDatix’s and/or the Hosting Provider’s other customers may incur by reason of any act or omission of the Customer or any of its representatives whilst on any premises of RLDatix and/or the Hosting Provider (including any failure by the Customer to comply with its obligations pursuant to these Terms and Conditions).
9.2. The Customer shall ensure that all of its employees, agents, sub-contractors and other persons authorised by it whom RLDatix and/or the Hosting Provider may permit access to RLDatix’s and/or the Hosting Provider’s premises for the purpose of auditing the provision of the Services are suitably qualified, skilled and experienced to carry out the audit for which they are entering the relevant premises to carry out. RLDatix and/or the Hosting Provider shall be entitled to refuse any individual access to its premises without liability to RLDatix and/or the Hosting Provider where RLDatix and/or the Hosting Provider has reasonable grounds for suspecting that such individual does not have the appropriate skills, qualifications or expertise or who may pose a threat to safety or security.
9.3. Whilst on any premises of RLDatix and/or the Hosting Provider, the Customer shall comply with all reasonable site procedures of RLDatix and/or the Hosting Provider notified to it in advance in writing.
10. TRADE COMPLIANCE
10.1. In connection with these Terms and Conditions, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, the Customer is solely responsible for compliance related to the manner in which the Customer chooses to use the Service Offerings, including the Customer’s transfer and processing of Customer Content and the provision of Customer Content to End Users. The Customer represents and warrants that the Customer and its financial institutions, or any party that owns or controls the Customer or its financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government, the European Union or its Member States, or other applicable government authority.
11. DATA PROTECTION
11.1. In addition to the relevant data protection terms, RLDatix shall procure that any Personal Data is stored in the geographical locations set out in the Privacy Policy or as otherwise agreed with the Customer in writing.
11.2. RLDatix shall use reasonable endeavours to procure that the Hosting Provider shall:
11.2.1. implement reasonable and appropriate measures to assist RLDatix to secure such Personal Data against accidental or unlawful loss, access or disclosure;
11.2.2. not disclose such Personal Data to any government body or Third Party, except as permitted under the Services;
11.2.3. not move such Personal Data from the geographical locations described in Clause 11.1; except in each case as necessary to comply with the law or a binding order of a governmental body, in which case RLDatix shall upon receipt from the Hosting Provider give the Customer notice of any legal requirement or order referred to in this Clause 11.2.3; and
11.2.4. use such Personal Data only in accordance with the Privacy Policy.
11.3. To provide billing and administration services, RLDatix may process Service Attributes in the region(s) where the Customer uses the Service Offerings. To provide the Customer with support services initiated by the Customer and investigate fraud, abuse or violations of these Terms and Conditions, RLDatix may process Service Attributes wherever RLDatix or the Hosting Provider maintains support and investigation personnel.
11.4. RLDatix shall be entitled to charge the Customer at its then current professional services rates for any time spent in connection with Privacy Agency Requests, Data Subject Requests or similar requests or providing information required by the Customer to comply with its obligations under data protection legislation.
12. PROPRIETARY RIGHTS
12.1. The Customer consents to RLDatix’s use of Customer Content to provide the Service Offerings to the Customer and any End Users.
12.2. The Customer represents and warrants to RLDatix that: (a) the Customer or the Customer’s licensors own all right, title, and interest in and to Customer Content; (b) the Customer has all rights in Customer Content necessary to grant the rights contemplated by these Terms and Conditions; and (c) none of Customer Content or End Users’ use of Customer Content or the Service Offerings will violate the Acceptable Use Policy.
12.3. RLDatix or RLDatix’s licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights. Subject to the terms of these Terms and Conditions, RLDatix grants the Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable licence to do the following: (a) access and use the Services solely in accordance with these Terms and Conditions; and (b) copy and use the RLDatix Content solely in connection with the Customer’s permitted use of the Services. Except as provided in this Clause 12.3, the Customer obtains no rights under these Terms and Conditions from RLDatix, RLDatix’s affiliates or RLDatix’s licensors to the Service Offerings, including any related Intellectual Property Rights. Some RLDatix Content and Third Party content may be provided to the Customer under a separate licence. In the event of a conflict between these Terms and Conditions and any separate licence, the separate licence will prevail with respect to the RLDatix Content or Third Party content that is the subject of such separate licence.
12.4. Neither the Customer nor any End User will use the Service Offerings in any manner or for any purpose other than as expressly permitted by these Terms and Conditions. Neither the Customer nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to the Customer under a separate licence that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. During and after the Term, the Customer will not assert, nor will the Customer authorise, assist, or encourage any Third Party to assert, any intellectual property infringement claim regarding any Service Offerings the Customer has used.
12.5. If the Customer provides any suggestions related to the Service (“Suggestions”) to RLDatix or RLDatix’s affiliates, RLDatix and RLDatix’s affiliates will be entitled to use the Suggestions without restriction. The Customer hereby irrevocably assigns to RLDatix all right, title, and interest in and to the Suggestions and agrees to provide RLDatix any assistance RLDatix require to document, perfect, and maintain RLDatix’s rights in the Suggestions.
13. LIMITATION OF LIABILITY
13.1. The following provisions set out RLDatix's entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer under these Terms and Conditions.
13.2. All warranties, conditions, guarantees, rights and remedies not set out in these Terms and Conditions whether implied by any applicable statute or otherwise are excluded to the maximum extent permitted by law.
13.3. The Customer acknowledges that:
13.3.1. it will comply with all laws, rules and regulations (including any rules, codes of conduct or regulations which apply to the Customer’s particular business or industry);
13.3.2. the Services have not been designed to meet the Customer’s individual requirements;
13.3.3. it is the Customer’s responsibility to ensure that the Services are fit for the Customer’s purposes;
13.3.4. it is solely responsible for the content of any reports which are generated by the Services and that it is the Customer’s responsibility to ensure that reports generated are adequate for the Customer’s needs and purposes; and
13.3.5. any data which is inputted by the Customer while using the Services shall be in accordance with any instructions given by RLDatix, and shall be inputted accurately and properly.
13.4. Nothing in these Terms and Conditions shall limit or exclude RLDatix’s liability for:
13.4.1. death or personal injury caused by the negligence of RLDatix or its officers, employees, contractors or agents;
13.4.2. fraud or fraudulent misrepresentation; or
13.4.3. any other liability which may not be excluded by law.
13.5. Subject to Clause 13.4, RLDatix shall have no liability to the Customer in respect of any failure or delay by it to provide the Services in accordance with these Terms and Conditions where such failure or delay is attributable to any failure or delay by the Customer to comply with its obligations under these Terms and Conditions.
13.6. Subject to Clause 13.4, RLDatix shall not be liable under or in relation to these Terms and Conditions (whether such liability arises due to negligence, breach of contract, misrepresentation or otherwise) for any:
13.6.1. indirect, special or consequential loss or damage;
13.6.2. any form of exemplary or incidental loss or damages;
13.6.3. loss of profits or anticipated profit;
13.6.4. loss of sales, business, customers or revenue;
13.6.5. loss of goodwill or damage to reputation;
13.6.6. loss of contract;
13.6.7. loss of savings or anticipated savings;
13.6.8. loss of opportunity;
13.6.9. loss or corruption of data;
13.6.10. any loss or damage arising as a result of any loss of or corruption to data (whether temporary or permanent);
13.6.11. any loss or damage arising out of an inability to restore data due to the loss of or damage to any encryption key by the Customer;
13.6.12. loss or damage relating to or arising from any reliance on any report or data which is entered into or extracted out of the Services by the Customer; or
13.6.13. loss or damage relating to or arising from reliance on the Services by the Customer to meet any of the Customer’s legal obligations under any law or regulation (including, without limitation, health and safety law).
13.7. Subject to Clause 13.4, RLDatix shall not be liable in respect of any breach of these Terms and Conditions or for any representation, statement or tortious act or omission:
13.7.1. which results from any breach of these Terms and Conditions by, or any negligent act or omission of, the Customer; and/or
13.7.2. unless the Customer shall have served notice of the same upon RLDatix within six months of the date it became aware of it or, if earlier, the date when it ought reasonably to have become so aware; and/or
13.7.3. to the extent RLDatix remedies any breach of these Terms and Conditions within six months after being notified by the Customer of the breach.
13.8. Subject to Clause 13.4, neither RLDatix nor any of RLDatix’s affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with:
13.8.1. the Customer’s inability to use the Services, including as a result of any (i) termination or suspension of the Customer’s use of or access to the Service Offerings, (ii) RLDatix’s discontinuation of any or all of the Service Offerings, or, (iii) any unanticipated or unscheduled downtime of all or a portion of the Services for any reason;
13.8.2. the cost of procurement of substitute goods or services;
13.8.3. any investments, expenditures, or commitments by the Customer in connection with these Terms and Conditions or the Customer’s use of or access to the Service Offerings; or
13.8.4. any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of the Customer Content or other data.
13.9. Subject to Clause 13.4 and without prejudice to Clause 13.11, RLDatix’s liability for damage to or loss of physical property shall not exceed £30,000 (thirty thousand pounds) in respect of any one event or series of connected events giving rise to a claim for any such damage or loss.
13.10. Subject to Clause 13.4 and without prejudice to Clauses 13.11 and 13.9, the total aggregate liability of RLDatix to the Customer in connection with the provision of the Services or otherwise arising out of or in connection with the Services or these Terms and Conditions during each Year howsoever arising whether in contract, tort (including negligence) or otherwise shall be limited to the amount of Hosting Charges paid or payable by the Customer for the provision of the Services giving rise to the claim in question during the immediately preceding Year (or during the first Year the Hosting Charges paid and payable during that period) subject to a maximum amount of £1,000,000 (one million pounds) if lower than the actual amount of the Hosting Charges over that Year.
13.11. In the event that the provision of the Services (or part thereof) is terminated prior to the expiry of its Minimum Term or without compliance with its Notice Period (as applicable) other than by reason of the Customer exercising its right to terminate pursuant to Clauses 14.2 or 14.4 or should the Customer purport to terminate the provision of the Services without complying with the applicable provisions of these Terms and Conditions, none of the provisions of this Clause 13 shall operate so as to exclude RLDatix’s right to recover from the Customer the Hosting Charges which would have been payable by the Customer in respect of the Services up until the earliest point at which the Customer could have lawfully terminated the provision of the Services in accordance with these Terms and Conditions, provided that RLDatix shall be obliged to mitigate its loss in accordance with common law principles.
13.12. The Service Offerings are provided “as is.” Except as expressly provided in these Terms and Conditions, or to the extent prohibited by law, or to the extent any statutory rights apply that cannot be excluded, limited or waived, RLDatix and RLDatix’s affiliates and licensors:
13.12.1. make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Service Offerings or the Third Party content, and
13.12.2. disclaim all warranties, including any implied or express warranties (i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, (ii) arising out of any course of dealing or usage of trade, (iii) that the Service Offerings or Third Party content will be uninterrupted, error free or free of harmful components, and (iv) that any content will be secure or not otherwise lost or altered.
13.13. None of the provisions of this Clause 13shall operate so as to exclude or limit RLDatix’s right to recover from the Customer the Hosting Charges which would have been payable by the Customer (including any element of the Hosting Charges which is profit) and no such sums shall count towards the cap on the Customer’s liability to RLDatix.
13.14. The Customer acknowledges that the provisions of this Clause 13 are, taking into account all the circumstances and the ability of the parties to obtain insurance, reasonable in every respect.
13.15. The provisions of this Clause 13 shall survive any termination of these Terms and Conditions.
14. TERM AND TERMINATION
14.1. Subject at all times to earlier termination in accordance with the provisions of these Terms and Conditions, the Services shall continue until the expiration of the Minimum Term. Following the expiry of the Minimum Term these Terms and Conditions shall automatically renew for successive periods of twelve months unless either party serves on the other not less than three months written notice of termination, such notice to expire at the end of the Minimum Term or an anniversary of the date on which the Minimum Term expires (the “Notice Period”).
14.2. The Customer shall be entitled to terminate the provision by RLDatix of the Services prior to the expiry of the Minimum Term or thereafter, without complying with the applicable Notice Period, in the event that Datix fails (for a reason which is not Force Majeure or suspension of Services pursuant to Clause 5) to make the Service in question available for a period in excess of twenty-four consecutive hours on three occasions in any period of three consecutive months. The Customer shall only be entitled to exercise its right to terminate pursuant to this Clause 14.2 by serving written notice of termination on RLDatix within twenty-eight days of the date of the third qualifying period of unavailability with termination of the Services then taking effect on the expiry of that twenty-eight days' period. In the event that no notice of termination is received by RLDatix by the expiry of that twenty-eight days' period, the Customer shall be deemed to have waived its right to terminate pursuant to this Clause 14.2 on that particular occasion.
14.3. In the event that the Customer exercises its right to terminate the provision of the Services pursuant to Clause 14.2, RLDatix shall, within twenty-eight days of the date of termination, refund to the Customer any advance Hosting Charges which may have been paid by the Customer in anticipation of the provision of that Service after the date of termination.
14.4. Without prejudice to its other rights or remedies, either party shall be entitled to immediately terminate the provision of the Services or any part of the Services:
14.4.1. by serving written notice of termination on the other party (such notice to be served within fifty-five days of the breach giving rise to the right to terminate occurring) in the event that the other party commits a material breach of any of its obligations pursuant to these Terms and Conditions in connection with the provision of the Service in question, which, in the case of a material breach which is capable of remedy, is not remedied within twenty-five days following receipt of written notice from the party not in material breach requiring the party in breach to do so; or
14.4.2. in the event that the other party enters into any compromise or arrangement with its creditors or becomes unable to pay its debts within the meaning of Section 123(1) of the Insolvency Act 1986, if an order is made or an effective resolution is passed for the other party's winding up (except for the purposes of amalgamation or reconstruction as a solvent company), if a petition to wind-up the other party is presented to court (which is not withdrawn within fourteen days) or if a receiver, manager, administrative receiver or administrator is appointed in respect of the whole of any part of the other party's assets.
14.5. Without prejudice to its other rights or remedies, RLDatix shall be entitled to terminate at its discretion the provision of the Services by written notice in the event that the Customer fails on three or more occasions to pay any invoice (to the extent that the Customer has not disputed it in accordance with Clause 7.9) within fourteen days of its due date and any such termination shall be deemed to be as a consequence of a material breach by the Customer.
14.6. RLDatix may change or discontinue any or all of the Service Offerings or change or remove functionality of any or all of the Service Offerings or terminate these Terms and Conditions immediately upon notice to the Customer:
14.6.1. if RLDatix has the right to suspend under Clause 5, or
14.6.2. if RLDatix’s relationship or contract with the Hosting Provider or other Third Party partner who provides software, other technology, access, consent or services which are used or required by RLDatix in order to provide the Service Offerings expires, terminates or requires RLDatix to change the way RLDatix provides the Services or software or other technology as part of the Services, or
14.6.3. in order to comply with the law or requests of governmental entities.
14.7. Termination of the provision of the Services shall not affect the continuing enforceability of any provision of these Terms and Conditions which, whether expressly or by implication, is to survive termination.
14.8. Upon termination of these Terms and Conditions:
14.8.1. all the Customer’s rights under these Terms and Conditions immediately terminate;
14.8.2. the Customer remains responsible for all fees and Hosting Charges the Customer has incurred through to the termination date and is responsible for any fees and Hosting Charges the Customer incurs during the post-termination period described in Clause 14.9;
14.8.3. if termination is pursuant to Clause 14.6.2, the Customer shall be liable to pay the Hosting Charges for the affected Services up until the point in time that the Customer could otherwise first have terminated those Services, irrespective of the fact that those Services are no longer being provided;
14.8.4. the Customer will immediately return or, if instructed by RLDatix, destroy all RLDatix Content and Third Party Content in the Customer’s possession; and
14.8.5. Clauses 1, 3.1, 4, 7, 10, 12 (except the license granted to the Customer in Clause 12.3), 13, 14.8 and any other provision of these Terms and Conditions which expressly or by implication is to continue after termination will continue to apply in accordance with their terms.
14.9. Unless RLDatix terminates the Customer’s use of the Service Offerings pursuant to Clause 14.4, during the fifteen days following the termination date:
14.9.1. RLDatix will not take action to remove from the RLDatix systems any of Customer Content as a result of the termination; and
14.9.2. RLDatix will allow the Customer to retrieve Customer Content from the Services only if the Customer has paid all amounts due under these Terms and Conditions.
14.10. Any termination of the Service Offerings pursuant to the terms hereof shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15. FORCE MAJEURE
15.1. No failure or delay by either party to perform its obligations in accordance with these Terms and Conditions (other than the obligation to pay the Hosting Charges for the Services) shall give rise to any claim by the other or be deemed a breach of any obligation under these Terms and Conditions if such failure or delay results directly from an event of Force Majeure.
15.2. In the event that RLDatix is prevented from providing any Service to the Customer by reason of an event of Force Majeure for a period of in excess of twenty eight consecutive Business Days, then the Customer shall:
15.2.1. not be liable to pay the Hosting Charges associated with the provision of the Service in question during the continuance of the event of that Force Majeure event; and
15.2.2. be entitled to immediately terminate the provision of the Service affected by the event of Force Majeure by serving written notice on RLDatix.
16. RETURN OF CUSTOMER DATA
16.1. Where the Services are terminated by the Customer under Clause 8.1 or either Party under Clause 14.1 the Customer will remove its data from the relevant data centre during the relevant notice period.
16.2. In the event that the provision of any Service is terminated by the Customer pursuant to Clauses 14.2 or 14.4 and the Customer wishes to retrieve any data stored by it following such termination then the Customer shall inform RLDatix of this in writing at the same time as the Customer gives notice of termination. Subject to the Customer having paid RLDatix all sums for the time being due and payable to RLDatix, RLDatix shall then allow the Customer to continue to use the Service free of charge for a period of up to fifteen days for the purpose only of carrying out such retrieval.
16.3. In the event that the provision of any Service is terminated other than by the Customer pursuant to Clauses 14.2 or 14.4 and the Customer wishes to retrieve any data stored by it the Customer shall by written notice to RLDatix on or before the date of termination elect for retrieval of the data carried out by RLDatix in which case the Customer must pay immediately all Hosting Charges which may be outstanding at the date of termination and the then current Hosting Charges for the provision of such retrieval. RLDatix shall have no obligation to permit the use of the Service beyond the termination date so that the Customer may retrieve its data.
17. ENCRYPTION KEYS
17.1. Where, in order to make use of the Services, the Customer is provided with any encryption keys or logon and password details (“Access Codes”), those Access Codes shall be held at the risk of the Customer and it shall be the sole responsibility of the Customer to ensure that those Access Codes are kept safe and secure, are not shared and are managed prudently. The Customer acknowledges that RLDatix shall not be able to undertake the restoration of any data where the Customer has lost any applicable Access Codes provided to it, that RLDatix is entitled to treat any action or instruction made via an Access Code as a valid action or instruction and that RLDatix shall have no liability to the Customer in such circumstances.
18. ENFORCEMENT OF THESE TERMS AND CONDITIONS BY THIRD PARTIES
18.1. No person who is not a party to these Terms and Conditions shall have any right to enforce these Terms and Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999, except as expressly set out in these Terms and Conditions.
19. SPECIFIC SERVICE TERMS
19.1. The Services make use of Microsoft Software and Microsoft requires that the Customer agrees (and the Customer does agree) that:
19.1.1. the Microsoft Software is neither sold nor distributed to the Customer and the Customer may use it solely in conjunction with the Services;
19.1.2. the Customer may not transfer or use the Microsoft Software outside the Services;
19.1.3. the Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software;
19.1.4. the Customer may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law;
19.1.5. Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services;
19.1.6. Microsoft is not responsible for providing any support in connection with the Services. Do not contact Microsoft for support;
19.1.7. the Customer is not granted any right to use the Microsoft Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Software for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function; and
19.1.8. Microsoft is an intended Third Party beneficiary of this Clause 19.1, with the right to enforce its provisions.
19.2. As part of using the Services, the Customer agrees that the Hosting Provider’s resources may be terminated or replaced due to failure, retirement or other requirement(s). RLDatix has no liability whatsoever for any damages, liabilities, losses (including any corruption, deletion, or destruction or loss of data, applications or profits), or any other consequences resulting from the foregoing.
19.3. The Customer may only use the Hosting Provider’s resources to store, query, retrieve and serve data and other content owned, licensed or lawfully obtained by the Customer. The Customer acknowledges that neither RLDatix nor RLDatix’s licensors are responsible in any manner, and the Customer is solely responsible, for the proper configuration of database security groups and other security settings associated with the Hosting Provider.
19.4. RLDatix may terminate the Customer’s use the Hosting Provider’s resources if the Customer attempts to access or tamper with any software pre-loaded on the database instance, including the operating system software running on the database instance.
19.5. All Domain Name System (“DNS”) records (other than Private DNS records) used in connection with the Services will be publicly available and RLDatix will have no liability for disclosure of those DNS records.
19.6. The Customer’s use of email must comply with the Acceptable Use Policy and these Terms and Conditions.
20. CONFIDENTIALITY AND FREEDOM OF INFORMATION
20.1. Other than to its responsible employees, sub-contractors and professional advisers who need to have such Confidential Information disclosed to them and except insofar as a party may have a statutory duty to disclose any Confidential Information of the other party or is required by law or a regulatory body to do so, neither party shall divulge or communicate to any Third Party any Confidential Information of the other party but such restriction shall cease to apply to any Confidential Information of a party which may lawfully come into the public domain other than through the act or default of the other party.
20.2. Each party shall be entitled to use the Confidential Information of the other party only in connection with the performance of its obligations under these Terms and Conditions and not otherwise or for its benefit or the benefit of any Third Party, except that the Customer irrevocably consents to RLDatix revealing its findings from any audit process to the Health and Social Care division of the NHS.
20.3. Each of the parties undertakes to the other to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this Clause 20 by its employees agents and sub-contractors. The Customer shall remain principally liable for any breaches of the obligations in Clause 20 by its employees, agents or sub-contractors.
20.4. The Customer acknowledges and agrees that, where the Customer receives an information request under the Freedom of Information Act 2000 (“FOIA”) in connection with these Terms and Conditions, the Customer will immediately notify the same to RLDatix, and, where the information request refers to RLDatix’s commercially sensitive information or Confidential Information, the Customer will allow RLDatix sufficient time to raise an objection to the extent, type and/or nature of disclosure requested, and will work with RLDatix to agree the form of disclosure.
20.5. RLDatix is not itself subject to the FOIA but shall assist and cooperate with the Customer to enable it to comply with its disclosure obligations under the FOIA.
20.6. Where RLDatix receives a request for information under the FOIA which relates to these Terms and Conditions which does not refer to RLDatix’s commercially sensitive information or Confidential Information, RLDatix will not respond to that request (unless directed to do so by the Customer) and will use its best endeavours to transfer the request to the Customer within two Business Days).
20.7. With the exception of RLDatix’s commercially sensitive information or Confidential Information, RLDatix agrees that these Terms and Conditions and any recorded information held by RLDatix on the Customer’s behalf for the purposes of these Terms and Conditions are subject to the obligations and commitments of the Customer under the FOIA.
20.8. RLDatix agrees that, save in respect of RLDatix’s commercially sensitive information or Confidential Information, the decision on whether any other exemption to the general obligations of public access to information applies to any request for information received under the FOIA is a decision solely for the Customer.
20.9. RLDatix acknowledges that the Customer, acting in accordance with the codes of practice issued and revised from time to time under section 45 of FOIA, may disclose information concerning RLDatix and these Terms and Conditions, save for RLDatix’s commercially sensitive information or Confidential Information.
20.10. RLDatix agrees to assist the Customer in responding to a request for information, by processing information (as defined in FOIA) in accordance with a records management system that complies with all applicable records management recommendations and codes of conduct issued under section 46 of FOIA, using reasonable endeavours to provide copies of all information requested by the Customer which is not exempted within five Business Days of that request and without charge.
20.11. RLDatix and the Hosting Provider shall be entitled to record, retain, use and disclose the Customer’s Confidential Information as required by the Monitoring Requirements from time to time. RLDatix and the Hosting Provider shall be entitled to disclose the Customer’s Confidential Information to any regulatory body to whom they are required to disclose.
21. ORDER OF PRECEDENCE
21.1. If there is a contradiction or inconsistency between any documents or provisions contained in these Terms and Conditions, it shall be resolved by giving precedence to those documents or provisions in the following order:
21.1.1. the Clauses in these Terms and Conditions;21.1.2. the Service Level Agreement;
21.1.3. the Privacy Policy;
21.1.4. the Acceptable use Policy;
21.1.5. the terms of use of the RLDatix Website; and then
21.1.6. the Order Form.
22. VARIATIONS
22.1. RLDatix shall be entitled to make such reasonable amendments to these Terms and Conditions as may be necessary from time to time to ensure RLDatix’s and these Terms and Conditions’ continuing compliance with any applicable legislation, law, regulation, code of practice, agreement with any the Hosting Provider or any other Third Party and/or licence condition. Any such changes shall take effect on notification to the Customer.
22.2. Without prejudice to Clause 22.1, RLDatix shall at any time be entitled to amend the terms set out in these Terms and Conditions for any reason upon provision of no less than thirty days’ written notice to the Customer.
22.3. Save in respect of Clauses 22.1 and 22.2 above, no variation of these Terms and Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
23. ASSIGNMENT AND SUB-CONTRACTING
23.1. The Customer shall not be entitled to assign or novate any of its rights or obligations under these Terms and Conditions without the prior written consent of RLDatix, such consent not to be unreasonably withheld or delayed. For the purposes of this Clause 23.1, RLDatix shall not be deemed to have acted unreasonably should it refuse to consent to any assignment or novation by the Customer to any Third Party who is not, in the reasonable opinion of RLDatix, of the same financial standing or creditworthiness as the Customer.
23.2. RLDatix shall be entitled to sub-contract the performance of any of its obligations under these Terms and Conditions provided that any such sub-contracting shall not reduce RLDatix’s liability to the Customer under these Terms and Conditions. If, as a result of any act, omission or default by a sub-contractor, RLDatix is liable to compensate the Customer under these Terms and Conditions in respect of any claim, loss, damage, cost or liability, the Customer will on written request from RLDatix and at no cost to RLDatix assign to RLDatix any and all rights of action against the sub-contractor in respect of such claim, loss, damage, cost or liability which vests in the Customer.
24. GENERAL
24.1. Any notice or other communication to be given under these Terms and Conditions shall be in writing and shall be deemed to have been duly served on a party if it is left at the authorised address of that party or posted by pre-paid first class post addressed to that party at such address and shall if:
24.1.1. personally delivered, be deemed to have been received at the time of delivery, provided that where delivery occurs after 5.00 pm on a Business Day or on a day which is not a Business Day, receipt shall be deemed to occur at 9.00 am on the next following Business Day; or
24.1.2. posted to an inland address in the United Kingdom, be deemed to have been received on the Business Day after the date of posting.
24.2. For the purposes of Clause 24.1, the authorised address of RLDatix shall be its registered office for the time being and, in the case of the Customer, the address as set out in the Order Form. Either party may notify the other party in writing from time to time of a change in its authorised address to another address in the United Kingdom provided that notice of that change is given in accordance with the requirements of Clause 24.1.
24.3. Whilst the parties may make operational communications concerning these Terms and Conditions via electronic mail, formal notice may not be validly served under these Terms and Conditions by electronic mail.
24.4. Neither party has relied upon any warranty or representation except as expressly provided for or referred to in these Terms and Conditions. All warranties, conditions, terms and representations, express or implied (whether by law, statute or otherwise) if not expressly incorporated into these Terms and Conditions are excluded to the fullest extent permitted by law.
24.5. Nothing in these Terms and Conditions shall exclude or limit the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.
24.6. Nothing in these Terms and Conditions is intended to nor shall it create any partnership, joint venture, agency or other fiduciary relationship between the parties who are with respect to each other, independent contractors.
24.7. Any provision of these Terms and Conditions which is held to be invalid or unenforceable shall be deemed ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of these Terms and Conditions. If the foregoing applies, the parties shall use all reasonable endeavours to agree upon any lawful and reasonable variations to these Terms and Conditions which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the Clause, or the part- Clause, in question.
24.8. No failure, delay or neglect by a party to enforce any provision of these Terms and Conditions and no delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder, shall be construed nor be deemed to operate as a waiver of that party's right in respect of such provision of any succeeding breach of the same or other provision nor shall it affect the validity of these Terms and Conditions or any provision in these Terms and Conditions nor prejudice that party's right to take any subsequent action.
25. LAW AND JURISDICTION
25.1. These Terms and Conditions 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 laws of England and Wales.
25.2. Each party irrevocably agrees (subject to Clause 25.3) that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).
25.3. Notwithstanding Clause 25.2 above, in the event that the Customer’s registered office and/or principal place of business is outside the European Union, any dispute or claim arising out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with those Rules. The seat of arbitration will be London and the language of the arbitration will be English.
Service Level Agreement applicable to the Services (the RLDatix Hosted Service)
1. The RLDatix Service Desk is available 9:30am to 5:00pm UK Time, Monday to Friday, except UK public holidays for application queries.
2. The purpose of the Service Desk is primarily to enable the Customer’s nominated contact to access technical help in the event that the Customer encounters any problems with the Services.
3. RLDatix normally limits support to named individuals within an organisation and only queries from these individuals will be accepted. The Customer’s nominated contact is expected to have been trained in the RLDatix software and to be familiar with the Operating Instructions and with Microsoft Windows.
4. RLDatix recommends that details of any Fault are emailed to support@rldatix.com The Customer may also be asked to provide a more detailed description of the problem or to conduct certain investigations.
5. All requests for support are logged and allocated a call reference number. The Customer will receive an acknowledgement by email that their request has been logged and details of the priority which has been assigned to it. This will normally be done within three working hours of receipt of the request. If the suspected fault is of critical priority (1) (see the table below) you should telephone RLDatix.
6. RLDatix will not be able to resolve suspected issues which cannot be repeated or replicated. These will be presumed to be attributable to matters unrelated to the Services.
7. When a Fault has been accepted by RLDatix as a problem in the Services or as requiring further investigation before such a determination can be made, RLDatix will allocate it a priority. The priority is assessed according to the effect of the Fault on access to the RLDatix software in accordance with the Support Response Times set out in the table below.
8. RLDatix support is not intended as a substitute for training or for dealing with matters which are dealt with in any information provided to the Customer. However, as a discretionary service and not as a matter of obligation, the Service Desk may be available to answer queries of the “How do I ?” type.
9. RLDatix provides a chargeable service for dealing with support requests that are not covered by your contract. This service can be accessed by contacting the Service Desk in the normal way.
10. At RLDatix, we are constantly improving our products. Our aim is to make them easier to use, which will increase efficiency and deliver more benefits for your organisation. If you have a suggestion for the Services, you may request a suggestion form by contacting the service desk in the usual manner.
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