Service Agreement

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INTRODUCTION

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU (the ‘CUSTOMER’), WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. The purpose of this Agreement is to establish the terms and conditions under which the Customer may purchase or use the Services as described in an Online Order Quotation. This Agreement, including the Online Order Quotation, Service Agreement and Data Processing Agreement (“DPA”) constitutes the entire agreement between the Customer and PureClarity with regard to the Services. By accepting this Agreement, by accessing or using a Service, you agree to be bound by this Agreement.

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1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Terms.
​Active SKUs: set of unique product variants each with a single price and currency or Stock Keeping Units (SKUs) each with a single price and currency that are live and available to view on the Customer’s Property. ​Analytics: set of Raw Data and Meta Data used by the PureClarity Software to determine relevance and personalized results. ​Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation. ​Base Plan: the starting Plan within the Subscription Model allocated to the Customer. ​Billing Date: the first day of each month. ​Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. ​Campaign Email: an email campaign which the Customer broadcasts through a 3rd party email broadcast system that embeds a call to the Software to render Zones. ​Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8.1. ​Contracted Processor: means a Subprocessor; ​Customer Segment: a group of similar Visitors identifiable by past and current behavioural activity for the purpose of providing personalised results. ​Content: the data inputted by the Customer, Authorised Users, or PureClarity on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, including but not limited to campaigns, product information, Visitor’s personal details, searchandising terms and merchandising graphics. ​Data: Collectively the Raw Data, Content and the Meta Data. ​Data Feed: product, brand, category and user data transmitted to the PureClarity Software. ​Data Storage: the storage of the Data and storage to hold a single image backup of such Data. ​Data Protection Laws: means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country; ​Documentation: the document made available to the Customer by PureClarity at www.pureclarity.com/docs which sets out a description of the Services and the user instructions for the Services. ​EEA: means the European Economic Area; ​EU Data Protection Laws: means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR; ​Effective Date: the date upon which the Customer installs or otherwise accesses the PureClarity Software and/or PureClarity Services ​Free Trial: a period of time for the Customer to evaluate the PureClarity Software and PureClarity Services, free of charge, within the limits as set out on the PureClarity Website. ​Full Data Feed: complete set of the Customer’s product, brand, category and user data transmitted to the Software with up to a maximum of 4 per day, not exceeding 100MB per feed, additional data feeds will be charged at the prevailing rate. ​GDPR: means EU General Data Protection Regulation 2016/679; ​Language: means one of the languages on the list of available languages provided by the PureClarity Software. ​Meta Data: the aggregated data derived from analysing the Visitors’ behaviour. ​Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day. ​Online Quotation: the quotation, issued by PureClarity to the Customer, which details the Services to be provided, the limit allowances and the Subscription Fees, as amended from time to time in accordance with these Terms. ​Personal Data: has the meaning given to it in the Data Protection Laws; ​PCJS: means PureClarity JavaScript Snippet, which is installed on the Customer’s Property for the purpose of collecting Raw Data. ​Personalized Campaign: a merchandising campaign that is personalised for an individual and/or the Customer Segment. ​Platform Provisions: defined upper monthly limit allowances as detailed in the Order Online Quotation for number of Store Views, Languages, Staging Environment and Site Page Views per month. ​Product Delta: a feed of product data transmitted to the PureClarity Software that contains one or more product changes and represents a small percentage of a whole product data feed. ​Property: means any web page, app, or other online information technology property under the Customer’s control that sends data to the PureClarity Software. ​PureClarity: PureClarity Technologies Limited, a company incorporated and registered in England and Wales with company number 8872063 and whose registered office is at Unit 8, 10 Great North Way, York Business Park, York, YO26 6RB. ​PureClarity Software: the online PureClarity Software applications and products provided by PureClarity as part of the Services, known as PureClarity. ​PureClarity Website: means www.pureclarity.com and support.pureclarity.com. ​Raw Data: the initial tracked data collected by the PCJS. ​Services: the subscription services provided by PureClarity to the Customer under these Terms via “docs.pureclarity.com” or any other website notified to the Customer by PureClarity from time to time, as more particularly described in the Documentation, including the Support Services and Platform Provisions. ​Site: means a single instance of a the Customer’s website running under one domain name. ​Site Page View: the display of a web page on the site that contains the PCJS or a single Campaign Email. ​Staging Environment: an environment made available to the Customer for the purpose of developing and testing the integration of the Software with the Customer’s Property limited to 5,000 Site Page Views per month and restricted to the Customer’s IP address. ​Standard Contractual Clauses: is defined as agreement pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under the Regulation forming part of this DPA. ​Store View: A single view of a Site restricted to one Language but capable of supporting multiple currencies. ​Subprocessor: means any person appointed by or on behalf of PureClarity to process Personal Data on behalf of the Customer in connection with the Agreement. ​Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Software at the Platform Provisions and Support Services, as set out in the Order Confirmation. ​Subscription Model: the collection of Subscription Plans based on upper monthly Site Page Views with associated Subscription Fees along with other Platform Provisions. ​Subscription Plan: one in a series of successive levels that define the maximum Site Page Views allowable within a month, each Subscription Plan having a subscription fee associated with it based on the prevailing Subscription Model. ​Subscription Term: has the meaning given in clause 3.1 (being the Initial Subscription Term together with any subsequent Renewal Periods). ​Success Manager: appointed representative of PureClarity to the Customer to handle all account enquires. ​Support Services: services relating to the hosting and user support of the PureClarity Software as outlined in the Support Policy. ​Support Policy: PureClarity’s policy for providing support in relation to the Services. ​Subscription Plan: one in a series of successive levels that define the maximum Site Page Views allowable within a month, each Subscription Plan having a subscription fee associated with it based on the prevailing Subscription Model. ​Terms: these terms and conditions, as amended from time to time in accordance with clause 11 (Variations). ​Visitor: a person who visits the Customer’s Property. ​Zone: means a placeholder on the Customer’s Property for the purposes of rendering personalised site search and personalised merchandising results generated by the Software. 1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly ​1.3 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms. ​1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. ​1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. ​1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. ​1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. ​1.8 Save where expressly stated otherwise within these Terms, a reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date. ​1.9 Save where expressly stated otherwise within these Terms, a reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision. ​1.10 A reference to writing or written includes faxes and e-mail. ​1.11 References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.

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2. SERVICES

2.1 Subject to these Terms and Conditions, during the term of this Agreement, PureClarity grants to the Customer a non-exclusive, non-transferable, non-sublicensable license to use the PureClarity Software and PureClarity Services solely for the Customer’s internal business purposes, solely in accordance with the Documentation and solely for the scope for which the Customer pays the applicable fees and subject to the limitations on PureClarity’s website. ​2.2 PureClarity shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Terms. ​2.3 PureClarity shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: a) planned maintenance; and b) unscheduled maintenance, the procedure for which is set out in the Support Service Policy. ​2.4 PureClarity will, as part of the Services and at no additional cost to the Customer, provide the Customer with PureClarity’s standard the Customer Support Services during Normal Business Hours in accordance with PureClarity’s Support Policy in effect at the time that the Services are provided. PureClarity may amend the Support Policy in its sole and absolute discretion from time to time. ​2.5 the PureClarity Software is hosted in a multi-tenanted cloud environment; PureClarity reserves the right, at its sole discretion, to move this architecture to a similar environment at any point, and shall use its reasonable endeavours to provide the Customer with 30 days’ notice of such change.

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3. TERM

3.1 These Terms and Conditions will commence on the earlier of the date these Terms and Conditions are accepted by the Customer or the date the Customer installs or otherwise accesses PureClarity Software and/or PureClarity Services (the “Effective Date”). ​3.2 Thirty Day Trial. Upon the Customer’s initial sign-up for a Free Trial, the Customer will have a free, thirty (30) day evaluation period (the “Trial Period”) for PureClarity Services commencing on the Effective Date, subject to the limitations on PureClarity’s website. If, at the end of the Trial Period, the Customer fails to sign up for a longer-term plan, the Terms and Conditions will automatically terminate unless PureClarity agrees, in its sole discretion, to extend the Trial Period. This Trial Period may be extended from time to time and advertised and delivered accordingly; the principles and all other Terms and Conditions remain the same, regardless of Trial Period. ​3.3 After The Expiration Of The Trial Period. After the expiration of the Trial Period, the term of these Terms and Conditions shall continue for a three (3) month term (the “Initial Subscription Term”), unless the Customer signs up for a longer term through PureClarity website, subject to termination as set forth in this clause 3. Upon the expiration of each term, these Terms and Conditions shall automatically renew for successive periods of one (1) month (the “Renewal Period”) unless either party provides thirty (30) days’ notice prior to the end of the then-current term. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term. ​3.4 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if: a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; b) the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; c) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms; d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; (h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 3.3 d) to clause 3.3 h) (inclusive); l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; m) any warranty given by PureClarity in clause 7.4 of these Terms is found to be untrue or misleading; or n) in accordance with clause 11 (varation). ​3.5 On termination of these Terms for any reason: a) all licences granted under these Terms shall immediately terminate; b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced; and d) delete all copies of the PCJS and Behavioural Merchandising Zones from all Properties and certify in writing to PureClarity within 3 business days of such deletion that the provisions of this clause 3.3d) have been complied with.

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4. OBLIGATIONS

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PURECLARITY

4.1 PureClarity undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care. ​4.2 The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to PureClarity’s instructions, or modification or alteration of the Services by any party other than PureClarity or PureClarity’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, PureClarity will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or use its reasonable endeavours to provide the Customer with an alternative means of accomplishing a similar result. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, PureClarity: a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. ​4.3 This agreement shall not prevent PureClarity from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided by PureClarity under these Terms. ​4.4 PureClarity warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.

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CUSTOMER OBLIGATIONS

4.5 the Customer shall: a) provide PureClarity with: (i) all necessary co-operation in relation to these Terms; and (ii) all necessary access to such information as may be required by PureClarity; in order to provide the Services, including but not limited to Raw Data, Content, security access information and configuration services; b) comply with all applicable laws and regulations with respect to its activities under these Terms; c) carry out all other the Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, PureClarity may adjust any agreed timetable or delivery schedule as reasonably necessary; and d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User’s breach of these Terms; ​4.6 the Customer shall not upload any Content during the course of its use of the Services that: a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; b) facilitates illegal activity; c) depicts sexually explicit images; d) promotes unlawful violence; e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and g) PureClarity reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to, and to remove any material that breaches the provisions of this clause. ​4.7 the Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users. ​4.8 the Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify PureClarity.

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5. FEES

5.1 the Customer shall pay the Subscription Fees to PureClarity for the Services in accordance with this clause 5 and the Online Quotation. ​5.2 If PureClarity has not received payment within 14 days of each Billing Date, and without prejudice to any other rights and remedies of PureClarity: a) PureClarity may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and PureClarity shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and b) compensatory sums shall be charged and interest shall accrue on a daily basis on such due amounts in the sums and at the rates specified by the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time), commencing on the due date and continuing until fully paid, whether before or after judgment. ​5.3 All amounts and fees stated or referred to in these Terms: a) shall be payable in the stated currency as set out in the Online Quotation; b) are, subject to clause 13.4b), non-cancellable and non-refundable; and c) are exclusive of any and all taxes, fees and duties or other amounts, including sales, use, withholding and value added taxes, which are levied or based upon these Terms. ​5.4 If, at any time whilst using the Services, the Customer exceeds the allocated Platform Provisions, PureClarity shall charge the Customer, and the Customer shall pay, PureClarity’s additional charges as set out in the Online Quotation and the prevailing Subscription Model. ​5.5 For the avoidance of doubt, the Subscription Fees do not include training courses in respect of the Customer’s utilisation of the Services or any product of the Services, other than those available on PureClarity website. Training courses are available on a charged basis, the details and cost of which are available on request from the Success Manager. Subscription Fees also do not include onboarding services, the details and cost of which are available on request from the Success Manager. ​5.6 The Subscriptions Fees may increase by up to the Retail Price Index published by The Office of National Statistics for the UK. Any such increase shall be limited to once in any 12-month period, for which PureClarity shall give the Customer not less than 28 days written notice of the change.

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6. UPGRADES

6.1 In the event that the Site Page Views exceed the Base plan, as detailed in the Online Quotation, in any one month, PureClarity will automatically upgrade the Customer to a Plan within Subscription Model that does not exceed the used Site Page Views. This upgrade or any subsequent update made during the month will last for the duration of that month and will then revert to the Base Plan as detailed in the Online Quotation on the following month and be subject to this clause 6.1. ​6.2 In the event that the number of Data Feeds exceeding the Platform Provisions (see Full Data Feeds), PureClarity will charge the Customer the upgrade fees as detailed in the Online Quotation. ​6.3 the Customer may, from time to time during any Subscription Term, purchase additional Store Views and Data Feeds in excess of the allocated Platform Provisions as set out in the Online Quotation and/or additional add-on products and PureClarity shall grant access to the Services in accordance with the provisions of these Terms.

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7. DATA PROCESSING & PROTECTION

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GENERAL

7.1 Each party shall comply with the applicable Data Protection Laws with respect to the processing of the Personal Data. ​7.2 With respect to processing Personal Data the Customer shall be the data controller and PureClarity shall be a data processor ​7.3 the Customer shall only supply to PureClarity, and PureClarity shall only process, in each case under or in relation to this Agreement, the Personal Data of Data Subjects falling within the categories and types specified in Schedule 1 (Data processing information). ​7.4 the Customer warrants to PureClarity that it has the legal right to disclose all Personal Data that it does in fact disclose to PureClarity under or in connection with this Agreement. ​7.5 PureClarity shall only process the Customer Personal Data during the Term subject to the other provisions of this Clause 7.

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DATA SECURITY

7.6 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Supplier shall in relation to the Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. ​7.7 In assessing the appropriate level of security, PureClarity shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach. ​7.8 PureClarity shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Subprocessor who may have access to Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with applicable Data Protection Laws in the context of that individual’s duties to the Contracted Supplier, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality. ​7.9 PureClarity shall, in providing the Services, comply with its “Privacy and Security Policy” relating to the privacy and security of the Data.

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SUBPROCESSING

7.10 PureClarity may subcontract to other companies to provide limited services on its behalf, provided that PureClarity complies with the provisions of this Clause. Any such subcontractors will be permitted to process personal data only to deliver the services PureClarity has retained them to provide, and they shall be prohibited from using personal data for any other purpose. PureClarity remains responsible for its subcontractors’ compliance with the obligations of this Agreement. Any subcontractors to whom PureClarity transfers personal data will have entered into written agreements with PureClarity requiring that the subcontractor abide by terms substantially similar to the Data Processing terms in this Agreement. A list of subcontractors/subprocessors is listed in Schedule 1, which maybe varied from time to time at the discretion of PureClarity.

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DATA SUBJECT RIGHTS

7.11 Taking into account the nature of the Processing, PureClarity shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by the Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws. ​7.12 PureClarity shall promptly notify the Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and ensure that it does not respond to that request except on the documented instructions of the Customer or as required by applicable Data Protection Laws to which PureClarity is subject, in which case PureClarity shall to the extent permitted by applicable Data Protection Laws inform the Customer of that legal requirement before the Contracted Processor responds to the request.

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PERSONAL DATA BREACH

7.13 PureClarity shall notify the Customer without undue delay upon PureClarity becoming aware of a Personal Data Breach affecting Company Personal Data, providing the Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws. ​7.14 PureClarity shall co-operate with the Customer and take reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

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DELETION OR RETURN OF PERSONAL DATA

7.15 PureClarity shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.

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AUDIT RIGHTS

7.16 PureClarity shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Company Personal Data by the Contracted Processors. ​7.17 Information and audit rights of the Customer only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

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DATA TRANSFER

7.18 Regions. While providing the Service to the Customer, PureClarity uses third party service providers and subcontractors (“Sub-processors”) located in the USA and EU. Therefore, it is necessary for PureClarity to transfer the Customer Data to Sub-processors based on either the Data Processing Agreements which incorporate the Standard Contractual Clauses or by abiding to the EU-USA Privacy Shield. By accepting this Agreement, the Customer authorises PureClarity to enter into the required Data Processing Agreement(s), including where applicable the Standard Contractual Clauses, with Sub-processors on behalf of the Customer. PureClarity has implemented technical and organizational precautions defined in this DPA to protect the security and integrity of the Customer Data processed by PureClarity Infrastructure. ​7.19 Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to the Customer Data that is transferred, either directly or via onward transfer, to Sub-processor located in USA or EU. The Standard Contractual Clauses will not apply to the Customer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses will not apply: if Sub-processor in question has adopted an alternative recognized compliance standard for the lawful transfer of personal data (such as Privacy Shield) outside the EEA.

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BACKUP & RECOVERY

7.20 PureClarity shall follow its archiving procedures for the Data as set out in its “Backup and Recovery Policy”, as such document may be amended by PureClarity in its sole discretion from time to time. In the event of any loss or damage to Data, the Customer’s sole and exclusive remedy shall be for PureClarity to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by PureClarity in accordance with the archiving procedure described in its “Backup & Recovery Policy”. PureClarity shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except those third parties sub-contracted by PureClarity to perform services related to the Customer Data maintenance and back-up).

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OWNERSHIP

7.21 the Customer shall own all right, title and interest in and to all of the Raw Data and Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Raw Data and Content. ​7.22 PureClarity shall own all right, title and interest in and to all the Meta Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Meta Data.

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DATA COLLECTION

7.23 the Customer or its agents must ensure that the PCJS is correctly installed in accordance with the instructions provided by PureClarity in order to allow Raw Data to be collected by the PureClarity Software. PureClarity shall not be responsible for any failure in the provision of the Services as a result of failure to comply with this clause.

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8. CONFIDENTIALITY

8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that: a) is or becomes publicly known other than through any act or omission of the receiving party; b) was in the other party’s lawful possession before the disclosure; c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; d) is independently developed by the receiving party, which independent development can be shown by written evidence; or e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. ​8.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of these Terms. ​8.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms. ​8.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. ​8.5 the Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute PureClarity’s Confidential Information. ​8.6 PureClarity acknowledges that the Raw Data and the Content is the Confidential Information of the Customer. ​8.7 PureClarity can use the Meta Data for other commercial purposes, insofar as such Meta Data is suitably anonymised so as to retain the anonymity of the Customer, and any the Customer or potential the Customer of the Customer. ​8.8 This clause 8 shall survive termination of these Terms, however arising. ​8.9 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

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9. INDEMNITY

9.1 the Customer shall defend, indemnify and hold harmless PureClarity against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that: a) the Customer is given prompt notice of any such claim; b) PureClarity provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and c) the Customer is given sole authority to defend or settle the claim. ​9.2 PureClarity shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: a) PureClarity is given prompt notice of any such claim; b) the Customer provides reasonable co-operation to PureClarity in the defence and settlement of such claim, at PureClarity’s expense; and c) PureClarity is given sole authority to defend or settle the claim. ​9.3 In the defence or settlement of any claim, PureClarity may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. ​9.4 In no event shall PureClarity, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: a) a modification of the Services or Documentation by anyone other than PureClarity; or b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by PureClarity; or c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from PureClarity or any appropriate authority. ​9.5 The foregoing and clause 10.4b) state the Customer’s sole and exclusive rights and remedies, and PureClarity’s (including PureClarity’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

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10. LIMITATION OF LIABILITY

10.1 This clause 13 sets out the entire financial liability of PureClarity (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer: a) arising under or in connection with these Terms; b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms. ​10.2 Except as expressly and specifically provided in these Terms: a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. PureClarity shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to PureClarity by the Customer in connection with the Services, or any actions taken by PureClarity at the Customer’s direction; b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and c) the Services and the Documentation are provided to the Customer on an “as is” basis. ​10.3 Nothing in these Terms excludes the liability of PureClarity: a) for death or personal injury caused by PureClarity’s negligence; or b) for fraud or fraudulent misrepresentation. ​10.4 Subject to clause 10.2 and clause 10.3: a) PureClarity shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and b) PureClarity’s total aggregate liability in contract (including in respect of the indemnity at clause 9.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid, and actually received in cleared funds by PureClarity, for the Services during the 12 months immediately preceding the date on which the claim arose.

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11. GENERAL TERMS

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PROPRIETARY RIGHTS

The Customer acknowledges and agrees that PureClarity and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation. PureClarity confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.

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FORCE MAJEURE

PureClarity shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of PureClarity or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of PureClaritys or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

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CONFLICT

If there is an inconsistency between any of the provisions in the main body of these Terms and the Online Quotation, the provisions in the main body of these Terms shall prevail.

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VARIATION

These Terms and Conditions may be amended by PureClarity upon thirty (30) days’ notice by posting notice on the PureClarity website and the Customer may terminate this Agreement without penalty upon notice to PureClarity within ten (10) days of the amendment. Notwithstanding the foregoing, in the event the parties enter into, or have entered into a formal written agreement, including, without limitation an agreement which the parties have electronically signed, the terms of that agreement shall control over the terms of these Terms and Conditions.

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WAIVER

No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

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RIGHTS AND REMEDIES

Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

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SEVERANCE

If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

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ENTIRE AGREEMENT

These Terms, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.

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ASSIGNMENT

The Customer shall not, without the prior written consent of PureClarity, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms. PureClarity may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

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NO PARTNERSHIP OR AGENCY

Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

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THIRD PARTY RIGHTS

These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

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NOTICES

Any notice required to be given under these Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address notified by that party for such purposes, or sent by fax to the other party’s fax number as notified in writing by one party to the other. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

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GOVERNING LAW

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and must be construed in accordance with the law of England and Wales.

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JURISDICTION

Each party irrevocably agrees 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 or its subject matter or formation (including non-contractual disputes or claims).