BIGHAND LIMITED
UKHC LICENCE TERMS AND CONDITIONS

DOCUMENT CLASSIFICATION: CUSTOMER IN CONFIDENCE

1. DEFINITIONS

In this Agreement (as hereinafter defined), unless the context otherwise requires, the following expressions have the following meanings:

Additional Licence Fees: means fees payable for the Licence in addition to the Licence Fee, representing Users in addition to those specified in the Order Schedule (at the rate per User specified in the Order Schedule) and/or for licence fees in respect of Third Party Software;

Affiliate: means, in relation to a party, any entity or person controlling (directly or indirectly), controlled by or under common control with that party. For the purposes of this definition, “control” shall mean direct or indirect beneficial ownership of more than 50% (or outside the United Kingdom, such lesser percentage as is the maximum permitted level of foreign investment) of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that entity or person, as the case may be;

Agreement: means the Order Schedule, the Licence Terms and Conditions and the Customer Services Terms and Conditions;

BigHand: means BigHand Limited (company registration number 3128724) whose registered office is at 27 Union Street, London, SE1 1SD;

Commencement Date: means the date on which the Licence commences, as specified in clause 2.2;
Customer: means the Customer identified as such in the Order Schedule;

Customer Services Terms and Conditions: means the terms on which BigHand shall provide support, maintenance and related services in relation to the Software;

Documentation: means the operating manual and user instructions in electronic form or otherwise, made available to the Customer for aiding the use of the Software;

Fault: means a defect or fault in the Software in consequence of which it fails, materially, to conform to the Documentation;

Licence: means the licence granted by BigHand pursuant to Clause 2;

Licence Fee: means the fee for the Licence specified in and payable as set out in the Order Schedule (paid either to BigHand or to a BigHand Reseller) representing the number of Users specified in the Order Schedule;

Order Schedule: means a schedule to these terms and conditions called an “Order Schedule” which is an integral part of the Agreement;

Reseller: means an entity (which may be a BigHand Affiliate) authorised by BigHand to supply any one or more of software, support, maintenance or related services to Customers;

Software: means the software products listed in the Order Schedule, including all their subsequent modifications, upgrades, new versions and releases which shall form part of such software products, including, where applicable, Third Party Software;

Special Terms: means such provisions (if any) as are agreed by the parties and set out in the Order Schedule; Third Party Software: means software owned by a third party, but legally licensed for distribution and use as part of or in conjunction with the Software; and Users: means persons employed by or under contract to the Customer or any of its Affiliates to carry out the work of the Customer or that Affiliate and designated by the Customer to use the Software and the Documentation.

2. GRANT OF LICENCE, DURATION

2.1 (a) In consideration of the Licence Fee (and, where applicable, Additional Licence Fees), BigHand hereby grants to the Customer a revocable, non-exclusive, non-transferable licence to use the Software (including where appropriate Third Party Software) and the Documentation, subject to the terms and conditions contained in this Agreement. (b) BigHand may also, at its discretion, grant to the Customer a non-exclusive, non-transferable licence to evaluate the Software and the Documentation for an agreed period on the terms and conditions of this Agreement save that no Licence Fee shall be payable by the Customer, no warranties or guarantees shall be given by BigHand and in no event shall BigHand be liable to the Customer for loss or damage of any kind (except personal injury or death resulting from BigHand’s negligence) arising from the Customer’s use of or inability to use the Software or the Documentation or from Faults or defects in either whether caused by negligence or otherwise, or for any impact they may have upon the Customer or its business.

2.2 The Licence shall commence on the date the Software is delivered to the Customer (“Commencement Date”) and shall continue until this Agreement is terminated.

2.3 The use of the Software and the Documentation is restricted to use:

1. on servers in or under the Customer’s possession or control on the Customer’s network;
2. by the total number of Users specified in the Order Schedule;
3. for the Customer’s internal business purposes only; and
4. for the period for which the Customer has purchased the Support Services only.

2.4 The Customer shall permit only Users to use the Software and the Documentation and agrees to indemnify BigHand in respect of any losses or expenses incurred by BigHand as a result of the unauthorised use of the Software or the Documentation by anyone other than a User.

2.5 Except as authorised by BigHand (for example in connection with the provision by BigHand to the Customer of a software development kit), the Customer hereby undertakes not to alter, modify, adapt or translate the whole or any part of the Software or the Documentation in any way whatsoever nor permit the whole or any part of the Software to be combined with or become incorporated in any computer programs other than those specified in the Order Schedule. Customer shall not decompile, disassemble or reverse engineer the whole or any part of the Software or the Documentation in any way whatsoever nor attempt to do any of such things except as permitted by law or as expressly agreed with BigHand in writing.

2.6 BigHand shall provide the Third-Party Software to the Customer under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Customer, and the Customer agrees to be bound by such licence terms, pay Additional Licence Fees for such licences, and indemnify BigHand against any action brought by a Third Party Software owner against it as a result of any breach by the Customer of any such licence terms.

2.7 BigHand reserves the right to make improvements, substitutions, modifications or enhancements to any part of the Software provided that the functionality and performance of the Software will not as a result be materially affected to the Customer’s detriment.

2.8 The Customer agrees that:

1. it will not copy or permit the Software to be copied, except for reasonable security and backup purposes and that it will ensure that any copies made will include all copyright or other proprietary notices; and
2. it is the best judge of the value and importance of the data held on its computer systems and that it is solely responsible for instituting and operating all necessary backup procedures (for its own benefit) to ensure that data integrity can be maintained in the event of loss of data for any reason.

2.9 The Customer warrants that the Software and all copies will remain under its control and that it will take all reasonable precautions to safeguard the Software against unauthorised use.

2.10 Customer shall assist BigHand in determining User numbers either by allowing it to access Customer’s servers remotely from time to time or by one of its officers certifying such User numbers within 7 days of a request by BigHand so to do.

2.11 The Customer hereby acknowledges that it is licensed to use the Software, the Documentation and the Third Party Software only in accordance with the express terms of this Agreement and not further or otherwise.

3. FEES AND PAYMENT

3.1 Unless agreed otherwise, the Customer shall pay BigHand the Licence Fee and all Additional Licence Fees upon invoice. Additional Licence Fees will be invoiced from time to time by BigHand based upon the information it obtains pursuant to clause 2.10 or when Third Party Licence terms necessitate it. All invoices are payable within 30 days after the date of the invoice.

3.2 The Licence Fee and the Additional Licence Fees are all exclusive of value added tax and any similar taxes, which will be applied in accordance with prevailing legislation in force at the tax point date.

3.3 If the Customer fails to pay any amount payable by it under this Agreement, BigHand shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of the HSBC Bank. Such interest shall accrue on a daily basis and be compounded quarterly. BigHand reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

3.4 Notwithstanding the above provision for late payment, in this event BigHand may, at its option, and without prejudice to any other remedy, at any time after payment has become due terminate Customer’s Licence to use the Software either in respect of all of its Users or those not covered by the amount of Licence Fees or Additional Licence Fees paid. If BigHand becomes entitled to terminate this Agreement for any reason, any sums then due to BigHand will immediately become payable in full, whether invoiced or not.

4. WARRANTIES

4.1 BigHand warrants that the Software will conform in all material respects to the Documentation for a period of 90 days from the date the Software is delivered to the Customer or any alternative date agreed in writing with BigHand (“Warranty Period”). If, within the Warranty Period, the Customer notifies BigHand in writing of any Fault in the Software and such Fault does not result from the Customer, or anyone acting with the authority of the Customer, having modified the Software or having used it outside the terms of this Agreement or not in accordance with the Documentation, BigHand shall, at its option, do one of the following:

1. repair the Software; or
2. replace the Software; or
3. terminate this Agreement immediately by notice in writing to the Customer and refund the Licence Fee and any Additional Licence Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all information that is reasonably necessary to assist BigHand in resolving the Fault, including sufficient information to enable BigHand to re-create the Fault.

4.2 BigHand does not warrant that the use of the Software will be uninterrupted or error-free.

4.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results.

4.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

5. CONFIDENTIALITY

5.1 Each party shall keep confidential (a) the terms of this Agreement; and (b) any and all information of a confidential nature including, without limitation, trade secrets and information of commercial value (“Confidential Information”), that it may acquire in relation to the business or affairs of the other party. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement, save that BigHand shall be entitled to communicate the Customer’s Confidential Information to its Affiliates and any Reseller or licensor who may be involved in its performance. Each party shall ensure that its officers and employees (and in the case of BigHand, its Affiliates, licensors and Resellers) comply with the provisions of this clause.

5.2 The obligations set out in clause 5.1 above shall not apply to any information which is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement (including, in the case of BigHand, by a breach of confidentiality by its Affiliates, licensors or Resellers), subsequently comes lawfully into the possession of such party from a third party or a party is required to disclose by order of a court of competent jurisdiction.

5.3 Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any Confidential Information.

5.4 Customer consents to BigHand’s reasonable use of Customer’s name in BigHand’s promotional material.

5.5 The provisions of this clause 5 shall survive termination of this Agreement.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 The Customer acknowledges that all intellectual property rights in the Software belong and shall belong to BigHand and/or its licensors and/or (in the case of Third Party Software) the relevant third party owners of that software, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement and/or the terms of relevant Third Party Software licences.

6.2 Subject to clause 6.3, BigHand undertakes at its own expense to defend the Customer or, at BigHand’s option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK intellectual property rights of a third party (“Infringement Claim”) and shall indemnify the Customer against all reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, this clause 6.2 shall not apply where the Infringement Claim in question is attributable to the possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Agreement or the use of a non-current (as specified by BigHand on its website) release of the Software.

6.3 Clause 6.2 is conditional on:

1. the Customer notifying BigHand in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
2. the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of BigHand, which consent shall not be unreasonably withheld or delayed; and
3. BigHand having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving BigHand all reasonable assistance in connection with those negotiations and such litigation at BigHand’s request and expense.

6.4 If any Infringement Claim is made, or in BigHand’s reasonable opinion is likely to be made, against the Customer, BigHand may at its sole option and expense:

1. procure for the Customer the right to continue using the Software (or any part thereof) in accordance with the terms of this Agreement; or
2. modify the Software so that it ceases to be infringing; or
3. replace the Software with non-infringing software; or
4. terminate this Agreement immediately by notice in writing to the Customer and refund the Licence Fee and any Additional Licence Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof; provided that if BigHand modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 4.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had references to the date of the delivery of the Software been references to the date on which such modification or replacement was made.

6.5 This clause 6 constitutes the Customer's exclusive remedy and BigHand’s only liability in respect of Infringement Claims and, for the avoidance of doubt, is subject to clause 7.3.

7. LIMITATION OF LIABILITY

7.1 The Customer:

1. agrees that BigHand’s Affiliates, Resellers, licensors and sub-contractors shall be entitled, with BigHand, to the benefit of the limitations and exclusions contained in this clause 7; and
2. acknowledges that it has accepted the terms and conditions of this Agreement in the knowledge that BigHand must limit its liability and that the Licence Fee and the Additional Licence Fees have been calculated accordingly. The Customer is advised to make its own insurance arrangements if it desires to limit further its exposure to risk or if it requires further or different cover.

7.2 Neither party limits its liability for:

1. death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors (as applicable); or
2. fraud or fraudulent misrepresentation by it or its employees; or
3. breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.

7.3 Subject to clause 7.2, BigHand’s liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed one hundred and twenty five per cent (125%) of the aggregate of all fees paid by the Customer in the Year in which the liability arises or £500,000, whichever is the greater.

7.4 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement or, if it did rely on any written or oral representations not expressly set out in this Agreement, that it shall have no remedy in respect of such representations and (in either case) BigHand shall have no liability otherwise than pursuant to the express terms of this Agreement.

8. TERMINATION

8.1 This Agreement may be terminated immediately by notice in writing:

1. by BigHand if the Customer fails to pay the Licence Fee, any Additional Licence Fees or any other sum due under this or any Customer Services Terms and Conditions by the due date (otherwise than as a consequence of any default on the part of BigHand) and such sum remains unpaid for 14 days after written notice from BigHand (or a Reseller if appropriate) requiring such sum to be paid, or;
2. by either party if the other party is:
   1. in material or persistent breach of any of the terms of this Agreement and fails to remedy the breach (if capable of remedy) for a period of 30 days after written notice by the other party; or
   2. involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or equivalent circumstances occur in any other jurisdiction.

8.2 Any termination of this Agreement under this clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination.

8.3 On termination of this Agreement, the Customer shall immediately destroy or return to BigHand (at BigHand’s option) all copies of the Software and the Documentation then in its possession, custody or control and, in the case of destruction, certify to BigHand that it has done so.

9. GENERAL PROVISIONS

9.1 Variations: No variation of these terms and conditions will be valid unless confirmed in writing by authorised signatories of both of the parties.

9.2 Severability: If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced and the said illegal or unenforceable provision shall, if possible, be construed in such a way as to be enforceable whilst, at the same time, most closely expressing the intent of the provision as originally drafted.

9.3 Waiver: No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

9.4 Force Majeure: Neither party shall be liable for any failure or delay in the performance of this Agreement which is caused by circumstances beyond the reasonable control of a party, including, without limitation, any labour disputes between a party and its employees.

9.5 Third Party Rights: Unless specified otherwise in this Agreement (for example in clause 7) a person who is not a party to this Agreement has no right to benefit under or to enforce any term of it.

9.6 Assignment: Except in the case of an assignment by BigHand to one of its Affiliates, neither party shall assign this Agreement or any benefits or interests arising under it without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.

9.7 Notices: Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered by courier, in person, by mail or by fax and will be effective when received at the address set out for the receiving party in the Order Schedule.

9.8 Dispute Resolution: The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between the respective senior executives of the parties who have authority to settle the same. If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party requesting mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 60 days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator from venues in London. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until 30 days after the appointment of a mediator, provided that the right to issue proceedings would not be prejudiced by any such delay. Nothing in this section shall limit either party’s ability to seek injunctive relief or other emergency relief.

9.9 Anti-Bribery & Corruption: The Parties shall:

1. not engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and/ or anti-corruption laws, regulations and/ or codes including but not limited to the Bribery Act 2010, and;
2. have in place adequate procedures designed to prevent any person connected (either directly or indirectly) with this Agreement from engaging in any activity, practice or conduct which would infringe any anti-bribery and anticorruption laws, regulations and codes including but not limited to the Bribery Act 2010.

9.10 Entire Agreement: This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement and completely and entirely replaces any prior written or oral agreements, representations or understandings between the parties relating to that subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representations or assumptions that are not expressly incorporated in it. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.

9.11 Governing Law and Jurisdiction: This Agreement is governed by and construed according to English law and the Customer irrevocably consents to the exclusive jurisdiction and venue of the courts of England and Wales. This choice of law and venue is made to ensure uniform procedures and interpretations for all of BigHand’s Customers no matter where they may be located or where they use the Software.

DOCUMENT CLASSIFICATION: CUSTOMER IN CONFIDENCE

THIS AGREEMENT INCORPORATES THE TERMS AND CONDITIONS SET OUT IN THE ORDER SCHEDULE, THE BIGHAND LICENCE TERMS AND CONDITIONS AND THE BIGHAND CUSTOMER SERVICES TERMS AND CONDITIONS

1. DEFINITIONS
In this Agreement (as hereinafter defined), unless the context otherwise requires, the following expressions have the following meanings: Additional Licence Fees: means fees payable for the Licence in addition to the Licence Fee, representing Users in addition to those specified in the Order Schedule and/or for licence fees in respect of Third Party Software;

Additional Services: means services that BigHand may, in consideration of the appropriate fee, provide at the request of the Customer but which are outside of and additional to the Implementation Services and the Support Services. Additional Services that BigHand has agreed to provide as at the Effective Date are as specified in the Order Schedule;

Affiliate: means, in relation to a party, any entity or person controlling (directly or indirectly), controlled by or under common control with that party. For the purposes of this definition, “control” shall mean direct or indirect beneficial ownership of more than 50% (or outside the United Kingdom, such lesser percentage as is the maximum permitted level of foreign investment) of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that entity or person, as the case may be;

Agreement: means the Order Schedule, the Licence Terms and Conditions and the Customer Services Terms and Conditions;

BigHand: means BigHand Limited (company registration number 3128724) whose registered office is at 27 Union Street, London, SE1 1SD;

Business Hours: means BigHand’s normal working hours of 9.00am to 5.30 pm, Monday to Friday, excluding public holidays in England, or as otherwise specified in the Order Schedule;

Customer: means the Customer identified as such in the Order Schedule;

Documentation: means the operating manual and user instructions in electronic form or otherwise, made available to the Customer for aiding the use of the Software;

Effective Date: means the date on which this Agreement shall become effective, as specified in the Order Schedule;

Fault: means a defect or fault in the Software in consequence of which it fails, materially, to conform to the Documentation;

Implementation Fee: means the fee for the Implementation Services, as specified in the Order Schedule;

Implementation Services: means services supplied by BigHand which are connected with the installation of the Software at the Location;

Initial Period: means, in relation to the Support Services, a period of one Year from the Effective Date;

Licence: means a non-exclusive, non-transferable licence granted by BigHand to the Customer to allow those of the Customer’s Users covered by the Licence Fee to use the Software, in the absence of which they have no right so to do;

Licence Fee: means the fee for the Licence, as specified in the Order Schedule, to cover the number of Users specified in the Order Schedule;

Location: means the Customer site or sites where the Software is to be installed, as set out in the Order Schedule;

Order Schedule: means a schedule to these terms and conditions called an “Order Schedule” which is an integral part of the Agreement;

Services: means the Implementation Services, the Support Services and the Additional Services;

Software: means the software products listed in the Order Schedule (including all their subsequent modifications, upgrades, new versions and releases which shall form part of such software products, including, where applicable, Third Party Software) to which the Services will apply;

Special Terms: means such provisions (if any) as are agreed by the parties and set out in the Order Schedule;

System: servers in or under the Customer’s possession or control on the Customer’s network upon which the Software is to be installed;

Support Services: means the software maintenance and support services provided by BigHand to the Customer as more specifically described in clause 4;

Support Fee: means the annual fee for the Support Services;

Term: means the period during which the Agreement is extant, namely between the Effective Date of this Agreement and the date of its termination, as more particularly described in clause 11;

Third Party Software: means software owned by a third party, but legally licensed for distribution and use as part of or in conjunction with the Software, as specified in the Order Schedule;

Users: means persons employed by or under contract to the Customer or any of its Affiliates to carry out the work of the Customer or that Affiliate and designated by the Customer to use the Software and the Documentation; and Year: means a period of 12 months.

2. OVERVIEW
BigHand will provide, in consideration of the relevant fee or fees (as the case may be) such of the Services, the Support Services and the Additional Services as are agreed with the Customer and specified on the Order Schedule subject to the Agreement remaining in force.

3. IMPLEMENTATION SERVICES
In consideration of the Implementation Fee, and provided that the Licence Fee and any relevant Additional Licence Fees have been paid, BigHand will, on the date or dates agreed with the Customer (or as reasonably determined by Big Hand if the parties fail to agree): (a) provide relevant consultancy services; (b) deliver the Software to the Customer and install it on the System at the Location; (c) configure the Software to enable it to function, in accordance with the Documentation for the number of Users specified in the Order Schedule; and (d) provide such training in the use of the Software as is specified in the Order Schedule.

4. THE SUPPORT SERVICES
4.1 In consideration of the Support Fee and provided that the Licence Fee and any Additional Licence Fees have been paid, Big Hand will, during the Term, provide the following support and maintenance services for the Software during Business Hours:

1. a telephone help desk (supported by email) to provide first-line technical support to Users, in particular, on the routine use and operation of the Software and on procedures and methods intended to assist the Customer in obtaining the best possible use from the Software;
2. remote Fault investigation and diagnosis and where possible correction or recommendations for the correction of such Faults, following the reporting of any such Faults by the Customer to BigHand’s telephone helpline support facility.

Out-of-hours services are not within the scope of the Support Services but can be provided as Additional Services.

4.2 BigHand undertakes to use all reasonable endeavours to investigate (but not necessarily diagnose) Faults within 4 Business Hours of receiving the Customer’s call but time will not be of the essence in this respect. When BigHand has diagnosed the Fault, it will give an estimate to the Customer as to how long the Fault may take to correct, and will keep the Customer informed of progress on the investigation of the Fault from time to time.

4.3 BigHand will classify Faults as “Critical” or “Non-Critical”. For the avoidance of doubt, a Critical Fault is a reproducible Fault in the Software which substantially hinders or prevents the Customer from using a material part of the functionality of the Software. A Non-Critical Fault is any reproducible Fault in the Software other than a Critical Fault.

4.4 In respect of:

1. Critical Faults: BigHand will work on the Fault continuously during Business Hours until the Fault is resolved or downgraded to Non-Critical;
2. Non-Critical Faults: BigHand will work on the Fault (but not necessarily continuously) during Business Hours generally until a solution or patch or work-around has been found.

However, BigHand reserves the right, in its absolute discretion, to correct Non-Critical Faults in the next point upgrade (see below) of the Software, depending upon, amongst other things, the severity of the Fault, the importance of the matter to the Customer, and the likely general benefits of any solution.

4.5 BigHand carries out all investigation, diagnosis and solution of Faults remotely and the Support Services do not cover Fault diagnosis, analysis and correction at the Location but if it becomes necessary for BigHand to perform such work at the Location, such work will be undertaken as Additional Services.

4.6 For the avoidance of doubt, provision of the Support Services does not imply any guarantee that BigHand will be successful in correcting all Faults and BigHand does not accept any liability in connection with this.

4.7 During the Term, in addition to the above, BigHand will provide, as part of the Support Services, point upgrades (an upgrade to the Software denoted by a change to numbers to the right of the leftmost decimal place e.g. 3.1 to 3.2) and service releases (updates to the Software identified by the letters “SR” e.g. 3.1 SR 1) of the Software at no additional charge.

4.8 Exclusions: BigHand is not obliged to provide Support Services:

1. if the Customer fails to maintain the Software at BigHand’s specified release level unless agreed otherwise by BigHand;
2. in respect of Faults caused by any modifications or enhancements to the Software not made by BigHand or made without BigHand’s prior written consent, or resulting from incorrect use of the Software;
3. for Faults caused by software other than the Software;
4. in respect of defects or errors or faults which are not Faults;
5. for Faults caused by the System;
6. if Customer fails properly to maintain the System;
7. in respect of Third Party Software where the manufacturer or distributor of such Third Party Software fails to provide support for that Third Party Software to BigHand.

5. ADDITIONAL SERVICES

5.1 BigHand may, at its discretion, provide such Additional Services as Customer requests after the Effective Date, at BigHand’s standard fees or rates for such services or otherwise as the parties may agree from time to time.

5.2 For the avoidance of doubt, new versions (releases of the Software denoted by a change to numbers to the left of the leftmost decimal place e.g. 3.6 to 4.0) and new modules of the Software are provided as Additional Services and are not part of the Support Services.

6. FEES: PAYMENT

6.1 Unless agreed otherwise, the Customer shall pay BigHand the Implementation Fee, the Support Fee and fees in respect of the Additional Services, upon invoice, in the amounts shown or in accordance with the rates specified, in the Order Schedule or if not so specified, in accordance with Big Hand’s standard rates for such services. All invoices are payable within 30 days after the date of the invoice.

6.2 Customer will be invoiced annually in advance for the Support Fee. The amount of the Support Fee for the Initial Period is set out in the Order Schedule and is for the number of Users specified in that Order Schedule. Thereafter, BigHand, for administration purposes, reserves the right to align invoicing with calendar quarters and the Support Fee will be prorated accordingly. Customer shall pay BigHand further Support Fees for Users in addition to those listed on the Order Schedule in respect of the Software and (where the Customer has purchased Third Party Software) the Third Party Software. BigHand reserves the right to vary the Support Fee in respect of the Software and (where the Customer has purchased Third Party Software) the Third Party Software at any time after the Initial Period, provided always that it gives Customer at 90 days’ notice of its intention to do so prior to the expiry of the then current period for which Support Services have been purchased. Each of the Implementation Fee, the Support Fee and fees in respect of the Additional Services, are exclusive of expenses reasonably incurred in the performance of this Agreement by BigHand which, if agreed in advance with the Customer (where this is reasonably possible), are payable in addition and will be invoiced monthly in arrears.

6.3 The Implementation Fee, the Support Fee and fees in respect of the Additional Services, are all exclusive of value added tax and any similar taxes, which will be applied in accordance with prevailing legislation in force at the tax point date.

6.4 If the Customer fails to pay any amount payable by it under this Agreement, BigHand shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of the HSBC Bank. Such interest shall accrue on a daily basis and be compounded quarterly. BigHand reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6.5 Notwithstanding the above provision for late payment, in this event BigHand may, at its option, and without prejudice to any other remedy at any time after payment has become due: (i) terminate or temporarily suspend this Agreement; and (ii) terminate Customer’s Licence to use the Software either in respect of all of its Users or those not covered by the amount of Support Fee paid. If BigHand becomes entitled to terminate this Agreement for any reason, any sums then due to BigHand will immediately become payable in full, whether invoiced or not.

7. WARRANTIES

7.1 BigHand represents and warrants to the Customer that the Services will be performed with reasonable skill and care.

7.2 If, during the Term, BigHand receives written notice from the Customer of any breach by BigHand of the warranty contained in clause 7.1, BigHand shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate this Agreement immediately on written notice to the Customer and repay to the Customer all sums which the Customer has paid to BigHand under this Agreement during the Year in which the termination occurs, less a charge for Services properly (i.e. with reasonable skill and care) performed up to the date of termination.

7.3 This clause sets out the Customer's sole remedy and BigHand’s entire liability for breach of clause 7.1.

7.4 No representation or warranty is given by BigHand that all Faults will be fixed, or will be fixed within a specified period of time.

7.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.

8. CONFIDENTIALITY

8.1 Each party shall keep confidential (a) the terms of this Agreement; and (b) any and all information of a confidential nature including, without limitation, trade secrets and information of commercial value (“Confidential Information”), that it may acquire in relation to the business or affairs of the other party. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement, save that BigHand shall be entitled to communicate the Customer’s Confidential Information to its Affiliates and any reseller or licensor who may be involved in its performance. Each party shall ensure that its officers and employees (and in the case of BigHand, its Affiliates, licensors and resellers) comply with the provisions of this clause.

8.2 The obligations set out in clause 8.1 above shall not apply to any information which is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement (including, in the case of BigHand, by a breach of confidentiality by its Affiliates, licensors or resellers), subsequently comes lawfully into the possession of such party from a third party or a party is required to disclose by order of a court of competent jurisdiction.

8.3 Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such Confidential Information.

8.4 Promptly after a request by the party who has disclosed Confidential Information (“disclosing party”) or on termination of this Agreement, the party who has received Confidential Information (“receiving party”) shall deliver to the disclosing party (or, with the disclosing party’s consent, destroy) all records containing or relating to the Confidential Information that are in the receiving party’s possession or under its control and, in the case of destruction, certify to the disclosing party, in writing, that it has done so.

8.5 Customer consents to BigHand’s reasonable use of Customer’s name in BigHand’s promotional material.

8.6 The provisions of this clause 8 shall survive termination of this Agreement.

9. DATA PROTECTION

9.1 Consent to Process Personal Data. Customer consents to the processing by BigHand, its Affiliates, and subcontractors of personal data (including special categories of personal data) provided by Customer or collected by BigHand in order to provide the Services.

9.2 Obligations. Both parties will comply with:

1. all applicable requirements of and all their obligations under the applicable Data Protection Law (as defined in the Data Protection Addendum) which arise in connection with the Agreement; and
2. the provisions set out in the Data Protection Addendum.”

10. LIMITATION OF LIABILITY

10.1 The Customer acknowledges that it has accepted the terms and conditions of this Agreement in the knowledge that BigHand must limit its liability and that the Implementation Fee, the Support Fee and fees or rates for the Additional Services have been calculated accordingly. The Customer is advised to make its own insurance arrangements if it desires to limit further its exposure to risk or if it requires further or different cover.

10.2 Neither party limits its liability for:

1. death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors (as applicable); or
2. fraud or fraudulent misrepresentation by it or its employees; or
3. breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.

10.3 Subject to clause 10.2, BigHand’s liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed one hundred and twenty five per cent (125%) of the aggregate of all fees paid by the Customer in the Year in which the liability arises or £500,000, whichever is the greater.

10.4 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement or, if it did rely on any written or oral representations not expressly set out in this Agreement, that it shall have no remedy in respect of such representations and (in either case) BigHand shall have no liability otherwise than pursuant to the express terms of this Agreement.

11. TERM AND TERMINATION

11.1 This Agreement shall commence on the Effective Date, shall continue for the Initial Period and shall remain in force thereafter unless or until terminated by either party giving to the other not less than 60 days’ written notice of termination, expiring on the last day of the Initial Period or, thereafter, at the end of the period covered by the last annual Support Fee paid previous to such termination notice being given (as the case may be) but shall be subject to earlier termination as provided in clause 11.2 below.

11.2 This Agreement may be terminated immediately by notice in writing:

1. by BigHand if the Customer fails to pay any of the Implementation Fee, the Support Fee, any fees payable for Additional Services or any other sum due under this Agreement or the Licence Terms and Conditions by the due date, without prejudice to any other provisions relating to late payment in this Agreement or in any such Licence Terms and Conditions;
2. by either party if the other party is:

1. 1. in material or persistent breach of any of the terms of this Agreement and fails to remedy the breach (if capable of remedy) for a period of 30 days after written notice by the other party; or
   2. involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 113 of the Insolvency Act 1986, or equivalent circumstances occur in any other jurisdiction.

11.3 Any termination of this Agreement under this clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination. Customer agrees that BigHand will be under no obligation to refund to the Customer the whole or any part of any Support Fee paid by the Customer prior to termination.

12. GENERAL PROVISIONS

12.1 Variations: No variation of these terms and conditions will be valid unless confirmed in writing by authorised signatories of both of the parties.

12.2 Severability: If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced and the said illegal or unenforceable provision shall, if possible, be construed in such a way as to be enforceable whilst, at the same time, most closely expressing the intent of the provision as originally drafted.

12.3 Waiver: No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

12.4 Force Majeure: Neither party shall be liable for any failure or delay in the performance of this Agreement which is caused by circumstances beyond the reasonable control of a party, including, without limitation, any labour disputes between a party and its employees.

12.5 Third Party Rights: Unless specified otherwise in this Agreement a person who is not a party to this Agreement has no right to benefit under or to enforce any term of it.

12.6 Assignment: Customer may not assign any of its rights or obligations under this Agreement without BigHand’s prior written consent, which consent shall not be unreasonably withheld or delayed. BigHand may assign its rights and obligations under this Agreement by written notice to Customer. BigHand may subcontract the performance of any of its obligations under this Agreement to a third party.

12.7 Notices: Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered by courier, in person, by mail or by fax and will be effective when received at the address set out for the receiving party in the Order Schedule.

12.8 Dispute Resolution: The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between the respective senior executives of the parties who have authority to settle the same. If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party requesting mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 60 days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator from venues in London. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until 30 days after the appointment of a mediator, provided that the right to issue proceedings would not be prejudiced by any such delay. Nothing in this section shall limit either party’s ability to seek injunctive relief or other emergency relief.

12.9 Anti-Bribery & Corruption: The Parties shall:

1. not engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and/ or anti-corruption laws, regulations and/ or codes including but not limited to the Bribery Act 2010, and;
2. have in place adequate procedures designed to prevent any person connected (either directly or indirectly) with this Agreement from engaging in any activity, practice or conduct which would infringe any anti-bribery and anticorruption laws, regulations and codes including but not limited to the Bribery Act 2010.

12.10 Entire Agreement: This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement and completely and entirely replaces any prior written or oral agreements, representations or understandings between the parties relating to that subject matter and the parties confirm that they have not entered into this Agreement on the basis of any representations or assumptions that are not expressly incorporated in it. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.

12.11 Governing Law and Jurisdiction: This Agreement is governed by and construed according to English law and the Customer irrevocably consents to the exclusive jurisdiction and venue of the courts of England and Wales. This choice of law and venue is made to ensure uniform procedures and interpretations for all of BigHand’s Customers no matter where they may be located or where they use the Software.

Scope

The following BigHand services are within scope of this Agreement:

1. Incident Request Management
2. Service Request Management
3. Change Request Management (additional surcharge may apply)
4. Out of Hours Request Provisions (additional surcharge applies)

Terms of Use

1. This SLA will be effective from the date of installation or four months from order date (whichever is sooner), and is valid for a 12 month period and shall continue to apply as part of the agreed Annual Maintenance Service (AMS).
2. If either the BigHand Licence Agreement is terminated, or the AMS is not paid to BigHand, this SLA shall immediately terminate and BigHand shall cease to be liable for its obligations to Customer. The, Customer must fulfil the obligations as defined in section 11.1 of this document failure to do so may invalidate this SLA.
3. Service provision is only available during BigHand’s Business Hours unless otherwise agreed and specified.

Customer Environment

Obligations of the Customer

The Customer Shall:

1. The Customer (Customer’s Service Desk) is to triage calls to the BigHand Service Desk and assist BigHand in the investigation of any Requests, during Bighand Business Hours

2. Ensure that all of the Customers Service Desk personnel are suitably trained on the Customers BigHand solution to effectively support end-users

3. Permit BigHand reasonable necessary physical access to all system-relevant components during Customer’s usual business hours and, if deemed necessary by BigHand, beyond these hours

4. Permit BigHand to use remote Support Services

5. Provide any remote network access as required by BigHand to allow monitoring of the system in order for proactive management to take place

6. Maintain the Site and environment (including, without limitation, temperature and humidity control, power quality, local area networks, wide area networks, telecommunications lines and equipment, and fire protection)

7. Provide BigHand prompt access to the system, network cabling, and communication equipment as necessary in connection with the Service

8. Ensure that the System is used only by trained personnel

9. Designate a system administrator/ s who shall; make configuration changes for the user base/ solution, conduct regular housekeeping that includes (but not limited to) database backups, password, and access management, data management and maintenance, safe storage of any audit logs generated by BigHand systems

10. Provide IT personnel to support BigHand (on-site where health & safety requirements apply or remotely)

11. Provide any network access required by BigHand to allow maintenance of the BigHand Configuration Management Database

12. Ensure Anti-Virus software is deployed and maintained across all systems in a configuration as defined by BigHand

13. Comply with BigHand policy in relation to operating system updates on the system

14. Be responsible for implementing back-up and disaster recovery plans and procedures. The Customer shall be solely responsible if it uses data backup routines or programs other than those recommended by BigHand

15. Be responsible for physical, data, and network security including, without limitation, any firewalls or other security-related software subject to the obligations in respect thereof accepted by BigHand. BigHand will reasonably consult with the Customer regarding security issues and procedures related to the System

16. Deploy/ expedite any critical software packages/ updates in a timely and effective manner

17. Give BigHand advance notice of any changes to the live environment that may impact the Service Provision

Data Protection Addendum

This Data Protection Addendum (“DPA”) is incorporated into, forms an integral part of, and is subject to the terms and conditions of, the Agreement between BigHand and the Customer, to which it is attached.

This DPA is effective as of the Commencement Date of the Agreement.

In this DPA, the references to the Provider shall include BigHand and its Affiliates.

In the event of any conflict, inconsistency or ambiguity between the terms of the Agreement (excluding this DPA) and this DPA, the terms of this DPA shall apply, to the extent of such conflict, inconsistency or ambiguity

BACKGROUND

1. In order to manage and administer the Agreement and provide the products and/or services under the Agreement (“Services”), the Provider collects certain personal data from Customer and Users as described in the Annex.
2. Other personal data is provided by Users or Customer to the Provider or committed by Users or Provider to the Provider’s software as described in the Annex.
3. The parties now wish to enter into this DPA in order to regulate the provision and use of the Personal Data (as defined below) under the Data Protection Act 2018, UK GDPR (as defined in that Act), and where applicable the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and other applicable laws and regulations relating to the protection of personal data as in force from time to time (“Data Protection Law”).

OBLIGATIONS

IT IS AGREED as follows

1. DEFINITIONS

In this DPA, terms defined in the Agreement or in Data Protection Law bear the same meaning, save as otherwise expressly set out herein. Additional terms which apply to this DPA are found below:

• Annex: means both Annex 1 and Annex 2 to this DPA which are found at https://bighand.my.site.com/support/s/article/DPA-Annex1-Annex-2.
• Personal Data: means personal data (as defined in the Data Protection Law) provided by the Customer (and/or Users) to the Provider; and/or (ii) accessed or generated by the Provider, in each case in connection with, in the course of, or for the purpose of, the provision of the Services under the BigHand Agreement, as further described in the Annex.

2. DATA PROTECTION

2.1. Both Parties will comply with all applicable requirements of the Data Protection Law.

2.2. The parties acknowledge that for the purposes of the Data Protection Law, the Customer is a Controller of all Personal Data referred to in the Annex. The Provider is either an independent Controller or a Processor of such Personal Data, as specified in the Annex.

2.3. The Annex sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of Personal Data and categories of Data Subject in relation to Personal Data.

2.4 Schedule 1 applies if and to the extent that any Processing activities undertaken by the Provider in respect of Personal Data are subject to GDPR by virtue of GDPR Article 3 and where such processing takes place in a third country which is not the subject of an adequacy decision as referred to in Article 45(3) GDPR (“EU Restricted Territory”).

2.5 Schedule 2 applies if and to the extent that any processing activities undertaken by the Provider in respect of any Personal Data subject to UK GDPR take place in a territory which is not an Adequate Country (as defined in the IDTA) (“UK Restricted Territory”), and the IDTA refers to the standard data protection clauses issued by the Information Commissioner under s119A(1) of the Data Protection Act 2018 known as the international data transfer agreement.

3. PROVIDER OBLIGATIONS

3.1. The Provider shall, in relation to any Personal Data of which it is the Processor processed by it on behalf of the Customer:

1. process such Personal Data only in accordance with the written instructions of the Customer and for the purposes and as described in the Agreement or this DPA. The Customer’s instructions are those set out in this DPA, except as the parties otherwise agree;
2. ensure that fair processing notices are provided to Users as part of the Services setting out the information regarding Provider’s processing of Personal Data as required by Data Protection Law;
3. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
4. ensure that all personnel who have access to or process Personal Data are obliged to keep Personal Data confidential;
5. not transfer or otherwise process any Personal Data outside the UK unless:
1. 1. the prior written consent of the Customer has been obtained; or
   2. the transfer is to a third country in respect of which an adequacy decision has been made under Data Protection Laws; or
   3. the transfer is made subject to standard data protection or other contractual clauses specified or approved under Data Protection Laws, including where Provider has appointed sub-processors in accordance with clause 5 and provided such transfers are only made to the third countries referred to as a location of processing in the list of sub-processors referred to in the Annex; or
   4. the Provider complies otherwise with its obligations under the Data Protection Law by providing appropriate safeguards for any Personal Data that is transferred;

f. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with Customer’s obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
g. notify the Customer without undue delay on becoming aware of a Personal Data Breach;
h. notify the Customer without undue delay if requested to act in any way that would be infringing the Data Protection Law or other data protection law of the EU or a member state;
i. on termination of this DPA, delete or return any such Personal Data held by the Provider to the Customer unless required by law to retain any such Personal Data;
j. maintain complete and accurate records and information to demonstrate its compliance with this clause, and make such records and information available to the Customer on request (at no cost to the Customer); and,
k. allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.

4. CUSTOMER OBLIGATIONS

4.1. The Customer will ensure that

4.1.1 it has a lawful basis under Data Protection Law, all necessary appropriate consents and has provided and maintained fair processing information to Data Subjects in relation to its provision of  Personal Data to the Provider for the duration and purposes of Service provision under the Agreement;

4.1.2 it will process Personal Data in compliance with Data Protection Law, and procure the compliance of Users with Data Protection Law and the terms of the Agreement; and

4.1.3 it will take appropriate technical and organisational measures against the unauthorised or unlawful Processing of Data and against the accidental loss or destruction of, or damage to  Personal Data.

4.2. The Customer will provide reasonable assistance to the Provider in relation to the Providers’ compliance with its obligations under Data Protection Laws including in relation to entry into variations to or updated versions of this DPA where required under Data Protection Laws.

5. SUBCONTRACTORS

5.1. The Customer consents to the Provider appointing the parties listed in the list of sub-processors referred to in the Annex as third-party processors of Personal Data. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement complying with Data Protection Law. As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it under this DPA.

5.2. The Provider shall not engage another third-party processor to Process any Personal Data of which the Provider is the Processor on behalf of the Customer without the prior specific or general written authorization of the Customer.

6. TERMINATION

6.1. This DPA shall terminate automatically upon termination or expiry of the Provider 's obligations in relation to the Services.

6.2. The Customer shall be entitled to terminate this DPA forthwith by notice in writing to the Provider if the Provider is in material or persistent breach of this DPA which, in the case of a breach capable of remedy, shall not have been remedied within 21 days from the date of receipt by the Provider of a notice from the Customer identifying the breach and requiring its remedy. 

6.3. On termination of this DPA the Provider shall, at the written direction of the Customer, deliver to the Customer, destroy or make reasonably inaccessible (at the Customer’s discretion) all  Personal Data of which it is the Processor on behalf of the Customer which it then holds.

7. LIMITATION OF LIABILITY

7.1. To the fullest extent permitted by law, the Parties shall not be liable for any indirect, special, consequential, incidental, aggravated or punitive damages, including any failure of removal of meta data, any loss of data, profits, business or business opportunity, arising from or related to this DPA.

7.2. Each Party’s total liability under or in connection with this DPA, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the cap of liability contained in the Agreement.

8. MISCELLANEOUS

8.1. Either Party may, at any time on not less than 30 days’ notice, revise this DPA by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this DPA).

8.2. Failure by either Party to exercise or enforce any rights available to that party or the giving of any forbearance, delay or indulgence shall not be construed as a waiver of that party's rights under this DPA.

8.3. A Data Subject of Personal Data is entitled to enforce the terms and conditions of this DPA as a third party beneficiary. Other than such a Data Subject this DPA does not benefit any other person and the consent only of the parties is required to its variation.

8.4 This DPA replaces and supersedes any and all previous arrangements, agreements, addendums, schedules and understanding between the parties (whether as part of the Agreement or otherwise) relating to the processing of Personal Data.

8.5. This DPA shall be governed by and construed in accordance with the law governing the Agreement. Any dispute arising out of or in connection with this DPA shall be referred for resolution in accordance with the provisions of the Agreement.

SCHEDULE 1
STANDARD CONTRACTUAL CLAUSES

This Schedule applies to the processing by the Provider of any Personal Data subject to GDPR which takes place in any EU Restricted Territory.

Where the Provider processes any Personal Data which is subject to the GDPR in any EU Restricted Territory, such processing shall be subject to the provisions of the standard contractual clauses for the transfer of personal data to third countries, approved by the European Commission in decision 2021/914 (“EU Standard Contractual Clauses”).

EU Standard Contractual Clauses, as modified in this Schedule 1

The EU Standard Contractual Clauses (Modules One and Two) with the following modifications, are hereby incorporated into this Schedule 1:

1.1 Module One (Transfer Controller to Controller) clauses shall apply to the processing activities of the Provider in respect of Personal Data of which the Provider is the Controller
1.2 Module Two (Transfer Controller to Processor) clauses shall apply to the processing activities of the Provider in respect of Personal Data of which the Provider is the Processor on behalf of the Customer
1.3 Clause 7 (Docking Clause): shall apply
1.4 Clause 9(a) (Use of sub-processors):
All modules – Option 2 (general written authorisation) – applicable time period 14 days.
1.5 Clause 11 (Redress): the Option in paragraph (a) shall not apply
1.6 Clause 17 (Governing Law): Option 1 shall apply. The applicable law shall be the law of the Netherlands
1.7 Clause 18 (Choice of forum and jurisdiction): the courts of the Netherlands.

Annex I: shall be completed as follows:

List of parties: as set out in this DPA, with the Customer being the data exporter and the Provider being the data importer

Description of Transfer: as set out in the Annex to this DPA

Competent Supervisory Authority: The Dutch Supervisory Authority

Annex II: shall be completed as follows:

The technical and organisational measures as set out in the Annex to this DPA

Annex III – the list of sub-processors shall be as set out in the Annex to this DPA

SCHEDULE 2
INTERNATIONAL DATA TRANSFER ADDENDUM

This Schedule applies to the processing  by the Provider of any Personal Data which is subject to the UK GDPR and the UK Data Protection Act 2018 in any UK Restricted Territory.

Where the Provider processes any Personal Data in any UK Restricted Territory, such processing shall be subject to the provisions of the  EU Standard Contractual Clauses, as modified in Schedule 1 and the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by the Information Commissioner under s119A(1) of the Data Protection Act 2018  as completed and modified below: