Services Terms and Conditions
The following are the terms and conditions which govern Digital Control Room Limited’s delivery and Customer’s receipt and use of the Services defined in any Service Order established with Customer (“Terms“). By executing each Service Order, DCR and Customer agree to the application, governance and incorporation of these Terms.
1.1 In these Terms, unless the context requires otherwise the following terms shall have the following meanings:
“Agreement” means the contract for the delivery of Services by DCR to Customer established by the execution of each Service Order by Customer;
“Associated Company” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the applicable Party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
“Authorised User” means the persons identified by Customer who are authorised by Customer to access and or use the DCR IP and or the Services;
“Business Day” means a normal working day in England excluding weekends and bank and public holidays;
“Charges” mean the amounts payable by Customer for the Services as defined in each applicable Service Order;
“Claim(s)” means any and all liabilities, damages, losses, expenses, claims, demands, proceedings, investigations, suits, fines, or judgments, whether by way of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, and including all fees, costs, and expenses incidental thereto;
“Confidential Information” has the meaning defined in Clause 3.1;
“Customer” means the end customer entity listed in the applicable Service Order;
“Customer Account” means the account for Authorised User access to and/or use of the Platform and Services;
“Customer Data” means the Customer data in any form (whether text, documentation, audio, video, and images) together with all updates, revisions and derivative works associated with the same that is provided by Customer or any Authorised User and that is uploaded to the Platform;
“Customer IP” means all Intellectual Property Rights owned by or licensed to Customer in respect of the data, information and materials provided by Customer to DCR for use by DCR in providing, hosting and maintaining any Customer branding of the Platform;
“Data Privacy Addendum” has the meaning defined in Clause 26;
“Digital Control Room” or “DCR” means Digital Control Room Limited, a company registered in England and Wales under company registration no. 7634516, and whose registered office is situated at Digital Control Room Limited whose registered office is at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ, United Kingdom;
“DCR IP” means all Intellectual Property Rights owned by or licensed to DCR in respect of the Platform and the Services;
“Effective Date” means the earlier of: (a) the date of the execution of the Service Order by the Customer, (b) the commencement of the Subscription Term, or (c) the commencement of Customer’s use of the Services for any reason;
“GDPR” means the General Data Protection Regulation – Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, and/or, in DCR’s sole discretion, any implementing, amending or successor legislation;
“Governance Risk and Compliance” and “GRC” means an organisation’s program designed to enable the performance of the: (a) executive level management and control of the organisation, (b) processes through which the organisation identifies, assesses, and manages risks, and (c) procedures through which the organisation: (i) identifies its legal, regulatory, contractual, policy-based and other applicable requirements, (ii) assesses its state of compliance with those requirements, and (iii) manages non-compliance corrections;
“Intellectual Property Rights” means rights in respect of patents, trademarks, registered designs (and any applications for any of the foregoing), copyright (including rights in software – object code and source code), rights in the nature of copyright, derivative works, database rights, unregistered design rights, trade secrets, rights in and to trade names, business names, domain names, product names and logos, inventions, databases, discoveries, know-how and other intellectual or industrial property rights in each and every part of the world together with all applications for registration of any such rights and the right to apply for registration, and all renewals, revisions and extensions of such registrations;
“Party” and “Parties” means DCR and/or Customer, as the context indicates;
“Platform” means the DCR proprietary software, tooling, infrastructure, systems and other technology together with all updates, revisions and derivative works associated with the same;
“Platform Champion” means a Customer staff member who is technically competent and knowledgeable regarding Customer’s implementation and use of the Platform and who is authorized and mandated by Customer to work with DCR as a first point of contact in support of the training and use of the Platform by Authorised Users and the resolution of associated issues;
“Renewal Term” has the meaning defined in Clause 14.3;
“Service Order” has the meaning defined in Clause 5;
“Services” means the services defined in each applicable Service Order;
“Subscription Term” means the time period set forth in the applicable Service Order during which Customer, the applicable Associated Companies of Customer and any applicable Authorised Users shall have the right to receive the Services as provided in Clause 14.2;
“these Terms” means these Digital Control Room Limited Services Terms and Conditions;
“Third Party Content” means the content (including in particular open source and third party application software) owned and/or made available by any third party (or by DCR on such third party’s behalf) and used in connection the Platform and/or the Services;
“Third Party License Agreement” means any agreement under which Third Party Content is made available on the Platform or as part of the Services by DCR, as may be updated by DCR or the relevant third party from time to time; and
“Usage Rights” has the meaning described in Clause 6.1.
1.2 Except where the context otherwise requires, words denoting the singular include the plural and vice versa; words denoting any gender include all genders; words denoting persons include firms and corporations and vice versa.
1.3 Unless otherwise stated, a reference to a Clause, Section or Schedule is a reference to a Clause, Section, or Schedule of this Agreement. References to a Clause pertain to a clause in the main body of this Agreement. References to a Section pertain to a Section in a Schedule to this Agreement.
1.4 Each Schedule of this Agreement is subject in all respects to the terms and conditions of this Agreement, all of which are made a part of and are incorporated into this Agreement. If and to the extent the terms of a Schedule (including the terms of an Order agreed by the Parties) conflict with terms and conditions of this Agreement, the terms of the Schedule shall control.
1.5 Clause headings are for ease of reference only and do not affect the construction of this Agreement.
2.1 DCR will perform the Services with reasonable care and skill, and will correct at no cost to Customer any material errors or omissions regarding the same for which DCR is responsible.
2.2 The method and means of providing the Services shall be under the exclusive control, management and supervision of DCR, giving due consideration to the requests of Customer.
3. CONFIDENTIAL INFORMATION
3.1 Definition. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a Party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such Party; or (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing Party and marked “confidential” or with words of similar meaning. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving Party without an obligation of confidentiality; (ii) developed independently by the receiving Party, as demonstrated by the receiving Party, without violating the disclosing Party’s proprietary rights; (iii) obtained from a source other than the disclosing Party without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving Party). For purposes of this Agreement, in all cases and for all matters, Customer Data shall be deemed to be Confidential Information of Customer and DCR IP shall be deemed to be Confidential Information of DCR.
3.2 Obligation of Confidentiality. The Parties agree to hold all Confidential Information of the other Party in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a Party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The Parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
3.3 Remedies for Breach of Obligation of Confidentiality. Each Party acknowledges that breach of its obligation of confidentiality may give rise to irreparable loss and damage to the other Party, for which monetary damages would not provide an adequate remedy. Accordingly, a Party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
3.4 Return or Deletion of Confidential Information upon Termination. Upon termination of this Agreement, each Party shall return to the other Party or delete any and all Confidential Information received from the other Party, or created or received by a Party on behalf of the other Party, which is in such Party’s control so far as technologically possible.
4. CUSTOMER PRIMARY OBLIGATIONS
4.1 be solely responsible for its use of the Services, irrespective of whether such use is undertaken by Customer, Authorised Users, or any third party permitted by Customer;
4.2 make its own independent and professional evaluation and determination (using its own legal and regulatory advisors) regarding the extent to which the Services are sufficient and suitable for Customer’s use hereunder;
4.3 provide DCR in a timely fashion with all information regarding Customer that may be reasonably required for DCR’s performance of the Services hereunder, and keep DCR timely informed of any new information regarding Customer which may be necessary to enable DCR to effectively perform the Services;
4.4 maintain the security and confidentiality of usernames, passwords and other sensitive information, and notify DCR of any unauthorized access to or use of the Services;
4.5 notify DCR immediately if Customer has reasonable grounds for believing that there has been any unauthorised access to or use of the Services or any password or the Customer Account information is lost or stolen or any other known or suspected breach of security;
4.6 to the extent needed to address the Service related needs of Customer and Authorised Users and to enable DCR to fulfil its Service obligations on a timely basis, ensure that at all times during the term of this Agreement one or more Platform Champions are appointed, competent, mandated and available to provide required information to and work with DCR; and
4.7 assign and make available other Customer personnel to work in consultation with DCR as needed to enable the effective and efficient delivery of the Services.
5. SERVICE ORDERS
To the extent Customer may wish to order Services from DCR, the Parties will execute a service order using the form provided by DCR to Customer which references these Terms (“Service Order”).
6. USAGE RIGHTS
6.1 Usage Rights. Subject in all cases to the terms of this Agreement and in consideration of the Charges, DCR hereby grants to Customer a personal, revocable, non-exclusive, non-transferrable right to use the Services (the “Usage Rights”). The Usage Rights shall remain in effect during the applicable Subscription Terms and any Renewal Terms established by the Parties under each Service Order.
6.2 Authorised Users. As part of the Usage Rights, Customer may permit applicable Authorised Users to access and use Services.
6.3 Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party: (a) copy, disassemble, reverse engineer, decrypt, attempt to derive the source code of, or decompile the Platform or any components thereof; (b) modify, alter, create derivative works based upon, or translate the Platform or any parts thereof; (c) attempt to gain unauthorized access to the Services; (d) circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services; (e) without DCR’s prior written approval, provide access to the Platform to any third party which DCR may identify from time to time; (f) take any action that damages, disables, overburdens, or impairs the Services or the Platform; (g) use or exploit the Services beyond the scope for which they have been ordered; nor (h) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the Platform or the Services in a manner that is unlawful or contrary to the terms of this Agreement.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Ownership. Customer acknowledges that (excluding in all cases Customer IP and Customer Data included thereon) all DCR IP, including all right, title and interest in the Platform and all related software, processes, documentation, instructions, methods, techniques, technology and all related Intellectual Property Rights are and shall remain the sole and exclusive property of DCR. DCR acknowledges that Customer IP is and shall remain the sole and exclusive property of Customer. Nothing in this Agreement shall be construed to grant to either party any ownership in property of the other party.
7.2 License. Customer hereby: (a) grants DCR a worldwide, limited-term, royalty free license to make, have made, transfer, sublicense, copy, transmit, store, generate host, display and otherwise use Customer IP and Customer Data as needed for DCR to provide the Services to Customer in accordance with this Agreement; and (b) assigns to DCR for DCR’s unlimited use all rights and interests of Customer regarding all suggestions, correction and enhancement requests, recommendations, and other feedback provided by Customer.
7.3 Customer warrants that as of the Effective Date: (a) the license of the Customer IP to DCR in Clause 7.2 does not violate any agreement or arrangement it may have with the Customer Affiliates, Customer or third parties; (b) Customer is not aware of any claims by a third party of rights, either by ownership or license, in or to the Customer IP; and (c) Customer has not been notified that the Customer IP infringes the intellectual property rights of a third party.
7.4 Third Party Content. Third Party Content may be used in connection with the Platform and the Services. Any such Third Party Content and its access and/or use will be subject to the license terms of the applicable Third Party Licence Agreement and is for use only in connection with the Services. For purposes of all Third Party Content software, the following provision applies:
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY OTHER LIABILITY ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE, (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.5 All Usage Rights granted to Customer under this Agreement are subject to and conditional upon the full payment by Customer of the Charges properly due under this Agreement and Customer’s compliance with the terms of this Agreement.
7.6 During and after the term of this Agreement, Customer will (and Customer will procure that Authorised Users will) not use, market, register, attempt to register or claim any right over any trademark, domain name, keyword or other content that is confusingly similar to any DCR IP.
7.7 Infringement Claims: If Customer receives a Claim from a third party declaring that Customer’s use of the DCR IP infringes such third party’s Intellectual Property Rights, Customer shall promptly notify DCR and discontinue its use and granting of usage rights in connection with the DCR IP applicable to such Claim (the “Infringing IP”). DCR’s sole liability and Customer’s sole remedy in respect of such a Claim shall be for DCR, at no expense to Customer, to: (a) replace the Infringing IP with material that is free from infringement, (b) modify the Infringing IP so that it will be free of infringement, or (c) procure for Customer’s benefit rights to use such Infringing IP, with the choice of applying (a), (b) or (c) being at DCR’s sole discretion, and if none of (a), (b) or (c) is commercially reasonable in DCR’s opinion then (d) terminate this Agreement and refund to Customer any pre-paid Charges relating to the period after termination.
8. CHARGES AND PAYMENT
8.1 Subscription Term Charges: The Charges relating to the Services shall be established in each applicable Service Order. For the avoidance of doubt, unless otherwise expressly agreed in the applicable Order, all Charges do not include VAT and are otherwise subject to Clause 9.1.
8.2 Invoices: DCR shall be entitled to submit invoices to enable payment of Subscription Term Charges upon the commencement date of the Subscription Term. DCR shall be entitled to submit invoices for Renewal Term Charges within sixty (60) days prior to the commencement of the applicable Renewal Term, for payment by Customer thirty (30) days prior to Renewal Term commencement.
8.3 Purchase Orders: If Customer requires the issuance of a purchase order in connection with any Charges hereunder, Customer shall ensure that such purchase order is issued as needed to enable on time payment.
8.4 Additional Charges: Unless otherwise provided for in this Agreement, DCR shall invoice Customer for all expenses, fees and additional charges monthly in arrears. If agreed in advance with Customer, such additional charges may include travel costs, living expenses and other out of pocket expenses incurred by DCR in the performance of Services when the Services are performed away from DCR’s premises.
8.5 Payment: Customer shall pay all DCR invoices by means of electronic transfer within thirty (30) calendar days of the date of the relevant invoice.
8.6 Refunds: All payment obligations are non-cancellable and all amounts paid are non-refundable except where expressly provided for in this Agreement.
8.7 Suspension: If Customer fails to pay the Charges in accordance with this Agreement, DCR shall be entitled to suspend or terminate Customer’s access to and/or use of the Customer Account and the Services without incurring any liability to Customer.
9.1 All Charges payable by Customer are exclusive of all sales, use, property and value-added taxes, customs charges and duties, or other taxes, and Customer shall be responsible for payment of the same in relation to the Services provided hereunder and arising in connection with this Agreement or related to Customer’s access to or use of the Services, except for taxes based solely on DCR’s net income. If DCR is required to pay any such taxes for which Customer is responsible, then such taxes shall be billed to and paid by Customer.
9.2 If Customer is legally entitled to an exemption from any sales, use, property and value-added taxes, customs charges and duties, or other taxes, Customer is responsible for providing DCR with legally-sufficient tax exemption certificates for each taxing jurisdiction. DCR will apply the tax exemption certificates to applicable Charges under the Customer Account occurring after the date it receives the tax exemption certificates.
10.1 DCR may suspend any right and ability of Customer or any Authorised User to access or use the applicable Services immediately upon notice to Customer and without liability if DCR determines, in its sole discretion, that the access to or use of Services present a threat or issue such as: (a) a security risk (including any security risk to third parties); (b) a circumstance or event that could cause adverse impact upon the Services or that may subject DCR or any Associated Companies, sub-contractors, suppliers, licensors or any third party to any liability.
10.2 If DCR suspends Customer’s and/or any Authorised Users access to or use of any portion or all of the Services:
10.2.1 Customer shall remain responsible for all of the Charges that Customer has incurred up to and including the date of suspension;
10.2.2 Customer shall remain responsible for any applicable Charges for any Services to which Customer and/or any Authorised User continue to have access to or use;
10.2.3 DCR will not erase any Customer Data as a result of any such suspension, except as specified elsewhere in this Agreement; and
10.2.4 DCR’s right to suspend Customer’s or any Authorised User’s right to access or use the DCR IP or the Services, is in addition to DCR’s right to terminate this Agreement.
11. REPRESENTATIONS AND WARRANTIES
11.1 DCR represents and warrants that DCR:
11.1.1 is the lawful licensee or owner of the Platform (excluding any Customer Data and Customer IP thereon) and has all the necessary rights in the Platform to grant the Usage Rights hereunder; and
11.1.2 has the expertise to perform the Services in a competent, workmanlike, and professional manner.
11.2 Expect as otherwise provided in Clause 11.1, DCR hereby disclaims and excludes any and all warranties and conditions of any kind or nature to the fullest extent permitted by law, whether express, implied, statutory or otherwise, including without limitation, warranties of fitness for a particular purpose, merchantability, suitability, reliability, applicability, satisfactory quality, result, outcome, or compliance with descriptions not contained in this Agreement together with any warranties arising out of any course of dealing, usage or trade.
11.3 No Legal Advice or Guarantee of Results. Customer recognises that:
11.3.1 DCR is not and must not be relied on as a legal or regulatory advisory or consulting services firm. The Services do not constitute legal or compliance advice and appropriate advice should be taken for the specific circumstances of Customer.
11.3.2 The Services and DCR are not qualified, intended or in position to provide (and must not be relied on for the provision of) legal advice.
11.3.3 The Platform and the Services are only capable of operating as tools to assist organisations in operating their GRC programs. The Platform and the Services do not and cannot automatically or singularly generate compliance and may not be sufficient or appropriately structured or configured for all organisations. According, DCR does not represent, warrant or guarantee that the Platform and the Services:
(a) are complete, sufficient and error-free;
(b) will produce a particular result; or
(c) adequately identify, address and explain every provision, derogation and interpretation of the applicable legal, regulatory (such as the GDPR), contractual, policy and other GRC requirements.
11.3.4 Customer is directly accountable and responsible for assessing, reviewing and configuring the Platform to ensure that it is suitable, complete and sufficient for the applicable organisation.
11.3.5 No attorney-client relationship exists or will be formed between DCR and Customer or any of DCR’s representatives.
12. LIMITATIONS OF LIABILITY
12.1 Neither Party will be liable to the other Party for any incidental, special, consequential or indirect damages of any kind and howsoever caused, even if such Party has been advised of the possibility of such damages, or those in respect of loss of business, revenue, profits, savings, goodwill or reputation; loss of operating time or use; or damage to or loss or corruption of data. For the avoidance of doubt neither Party limits nor excludes its liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by law.
12.2 DCR’s total aggregate liability for all Claims arising in connection with the Services provided under any Service Order shall not exceed fifty percent (50%) of the Charges paid or payable by Customer under the applicable Service Order for the Subscription or Renewal Term during which the applicable Claim(s) shall have arisen.
12.3 In recognition of Clause 11.3, Customer hereby assumes all responsibility, liability and risk, and releases, indemnifies and holds DCR harmless from and against all Claims incurred by Customer in connection with its use of the Services and any breach, penalty or Claim in respect of any applicable regulation, irrespective of the extent to which the Services may or may not have addressed the source of the same and notwithstanding any act or omission by DCR in connection the same.
DCR shall be entitled to modify the Platform, the Services (including changing or removing any features or functionality of the Services, changing or discontinuing any application programming interfaces) at any time without prior notice and without any liability to Customer, and will endeavour to minimize any material impact on the Services functionality or outputs.
14. TERM AND TERMINATION
14.1 Agreement Term: The Agreement shall come into force on the Effective Date, and shall, subject to Clause 14.5, remain valid until and terminate upon the expiration of the Subscription Term and any Renewal Term(s) under the Service Order established hereunder as further provided in Clauses 14.2 and 14.3.
14.2 Subscription Term: Each Subscription Term shall take effect and remain valid during the Subscription Term period set forth in the applicable Service Order and, unless renewed in accordance with Clause 14.3, shall expire at the end of that period.
14.3 Renewal Terms: Subject to Clauses 14.4 and 14.5, each Subscription Term shall be automatically renewed upon its expiration for a subsequent period of twelve (12) months (or other renewal term period if set forth in the applicable Service Order) (“Renewal Term”). The same shall apply upon the end of each Renewal Term. DCR shall have the right to invoice Customer for the payment of any Renewal terms as provided in Clause 8.2. Unless otherwise agreed by the Parties, the Services, Charges and other terms applicable during the immediately preceding Subscription Term or Renewal term shall apply to the subsequent Renewal Term.
14.4 Non-Renewal and Termination: Automatic renewals shall continue as provided in Clause 14.3 unless and until Customer or DCR call for the non-renewal of the applicable subscription by giving the other Party written notice of such non-renewal by no later than sixty (60) days prior to the end of the then current Subscription Term or Renewal Term. In the event of any such non-renewal, the subscription shall terminate upon the end of the then current Subscription Term or Renewal Term.
14.5 Termination for Cause: Either Party may terminate this Agreement immediately by written notice to the other Party without incurring liability for such termination if any of the following occur:
14.5.1 the other Party commits a breach of any material obligation of this Agreement or other applicable licence terms agreed (including any obligation to pay any amount due) and fails to remedy it within a reasonable time period after of receiving a written notice specifying the nature and extent of the breach, and calling for termination of this Agreement in the event of a failure to remedy the same;
14.5.2 the other Party: (a) becomes unable to pay its debts as they fall due; (b) has an administrator, receiver, administrative receiver or similar person appointed over any part of its assets; (c) convenes a meeting of its creditors or a proposal is made for a voluntary arrangement or for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors, or another arrangement of similar import; (d) is wound up, goes into liquidation or ceases to carry on its business (in both cases except for the purposes of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by and assume the obligations imposed on that other Party under this Agreement); or (e) anything analogous to the foregoing in this Clause 14.5.2 occurs under the law of any jurisdiction in relation to the other Party.
15. CONSEQUENCES OF AND OBLIGATIONS ON TERMINATION
15.1 Prior to the termination of this Agreement, Customer shall, if applicable, retrieve from the Platform all data and other outputs and content generated by the Platform that Customer may require. DCR shall have no obligation to retain or provide any such data to Customer following termination.
15.2 Upon any expiry or termination of this Agreement: (a) all rights and permissions under this Agreement shall immediately terminate; and (b) Customer shall remain responsible for all Charges that have accrued up to and including the date of expiry or termination.
15.3 Survival: Termination of this Agreement under this or any other Clause shall not affect the continuance of any Clauses which are stated or by their nature are intended to continue after termination nor shall it affect any existing obligations already incurred whether relating to payment or otherwise.
16. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be taken to create any joint venture, partnership or other similar arrangement; the Parties shall at all times stand in relation to each other as independent contractors. Save as otherwise provided in this Agreement, neither Party is or may hold itself out to any third party as being the agent of the other or has the authority to bind the other Party. Each Party will remain solely responsible and liable toward its end customers and other third parties for its own respective costs and risks in connection with its delivery (in the case of DCR) and receipt and use (in the case of Customer) of the Services.
17. NO THIRD PARTY BENEFICIARIES
17.1 The terms of this Agreement are enforceable by the original Parties to it and by their successors in title and permitted assignees. None of the provisions of this Agreement shall be enforceable by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999 or any other law which gives a person who is not a party to a contract the right to enforce any of its provisions.
17.2 If a person who is not a Party to this Agreement has a right to enforce any term of this Agreement by virtue of any law, notwithstanding such law, the Parties may vary or cancel this Agreement by agreement between them without requiring the consent of such third party.
Customer agrees that while this Agreement remains in effect, and for a period of twelve (12) months thereafter, it shall not solicit for employment any employee of DCR or its Associated Companies who has been involved in the subject matter of this Agreement without the prior written agreement of DCR. This prohibition shall not prevent Customer at any time from running bona fide recruitment advertising campaigns nor from offering employment to any of DCR’s officers, directors or employees, as the case may be, who may respond to any such campaigns.
19.1 Either Party may provide notice to the other Party under this Agreement by sending the notice via first class pre-paid registered post or email, as detailed below. Notices shall be deemed to have been received: (a) five (5) Business Days later if sent by post to an address in a country different from the United Kingdom, (b) two (2) Business Days later if sent by post to an address in the United Kingdom, and (c) if sent by email, upon the email being sent.
19.2 If the deemed receipt under this Clause does not fall within normal working hours on a Business Day, receipt shall be deemed to be on the next Business Day.
19.3 Customer may provide any notice to DCR under this Agreement by email to email@example.com, or by first class registered post to the DCR registered office first listed above in this Agreement. DCR may update the email or mailing address for notices to it by changing these details on the DCR Website.
19.4 DCR may provide any notice to Customer under this Agreement by first class registered post to the Customer registered office first listed above in this Agreement.
19.5 All notices and communications of every kind shall be in the English language.
20. ASSIGNMENT AND SUB-CONTRACTING
20.1 Customer may not assign, transfer, novate or subcontract any of its rights or obligations (or any part thereof) under this Agreement without the prior written consent of DCR.
20.2 DCR may assign, transfer, novate or subcontract any of its rights or obligations (or any part thereof) under this Agreement to any third party without Customer’s prior written consent.
20.3 Subject to the other provisions of this Clause 20, this Agreement is binding upon and shall enure to the benefit of the Parties’ personal representatives, assigns and successors in title.
The waiver or modification by either Party of any term or condition of this Agreement shall not void, waive, or modify any other term or condition. The failure of either Party to insist, in any one or more instances, upon the performance of any terms of this Agreement shall not be construed as a waiver or relinquishment of that Party’s right to such performance or to future performance of such term.
22. FORCE MAJEURE – EXCUSED PERFORMANCE
Neither Party shall be liable for delays or any failure to perform its obligations under this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labour difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. In no event will any such event excuse or delay an obligation to pay Charges hereunder.
If any provision of this Agreement shall be found by any court to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
24. FURTHER DOCUMENTATION
The Parties shall and shall use all reasonable endeavours to procure that any other necessary party shall execute all such further documents and do all such acts and things now or in the future which may reasonably be necessary to give effect to this Agreement.
25. DISPUTE RESOLUTION
25.1 Notwithstanding anything else contained herein, any dispute between the Parties arising out of or relating to this Agreement shall be resolved in accordance with this Clause 25.
25.2 Prior to the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve the dispute informally, as follows:
25.2.1 Every effort should be made to resolve all disputes at the lowest possible level of authority, through normal channels and procedures.
25.2.2 If the Parties fail to agree, then upon the written request of either Party, each Party within five (5) Business Days, will designate an authorised representative, whose task it will be to meet for the purpose of endeavouring to resolve such dispute within sixty (60) calendar days.
25.2.3 The designated representatives shall meet as often as the Parties reasonably deem necessary and shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding.
25.3 The Parties agree that any written statements which will be prepared in connection with settlement negotiations, will be confidential and shall not be used against the Party who prepared such statement unless it is subsequently introduced by the preparing Party in the formal proceedings.
25.4 Each Party shall continue performing its obligations under this Agreement while any dispute is being resolved unless and until such obligations are terminated by the termination or expiry of this Agreement.
26. DATA PRIVACY
The Parties agree to abide by the terms of the Data Privacy Addendum to this Agreement, particularly for purposes of ensuring that: (a) DCR’s operations under this Agreement as data processor on behalf of Customer as data controller comply with GDPR Article 28; and (b) the parties have established and apply the required safeguards in respect any applicable transfers of such personal data from the European Economic Area to third Countries.
27. GOVERNING LAW
These Terms shall be construed in accordance with and governed by the laws of England and Wales without reference to conflict of law rules. Each Party irrevocably submits to the exclusive jurisdiction of the Courts of England in respect of any dispute, suit, action or proceedings which may arise out of or in connection with this Agreement. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
28. CHANGES TO THESE TERMS
DCR may at its discretion amend these Terms from time to time, provided that in the event of a Claim or dispute regarding this Agreement, Customer may at its discretion call for the application of the version of these Terms that shall have been in effect as of the latter of: (a) the Effective Date, and (b) the commencement of the then most recent Renewal Term.
29. ENTIRE AGREEMENT
29.1 Customer and DCR agree that this Agreement constitutes the complete and exclusive statement of the agreement between the Parties which supersedes all proposals or prior agreements, oral and written, and all other communications (whether negligently or innocently made) between the Parties relating to its subject matter.
29.2 Customer and DCR each acknowledge that they have placed no reliance on any representation, warranty, statement, undertaking or expression of opinion (whether negligently or innocently made) which is not expressly set out in this Agreement unless fraudulent. Neither Party shall have any right or remedy against the other Party arising out of or in connection with any such representation, warranty, statement, undertaking or expression of opinion unless fraudulent.