MYCXVISION GENERAL TERMS & CONDITIONS
- The definitions and rules of interpretation in this clause 1 apply in this Agreement:
“Agreement” has the meaning given to it in the Order Form;
“Applicable Data Protection Laws” means: (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data;
“Authorised Users” means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation, as further described in clause 2.2(d);
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Business Hours” means 9.00 am to 5.00 pm UK time on a Business Day;
“Client Data” means the data inputted by the Client, Authorised Users, or CXB HUB on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services (excluding Client Personal Data);
“Client Personal Data” means any personal data which CXB HUB processes in connection with this Agreement in the capacity of a processor on behalf of the Client;
“Commercial Terms” means the table identified as such in the Order Form;
“Confidential Information” has the meaning given to it in clause 11.1;
“Contract Year” means each 12 month period commencing on the Effective Date and each anniversary thereof;
“Documentation” means the documentation made available to the Client by CXB HUB online via https://www.mycxvision.com/or such other web address notified by CXB HUB to the Client from time to time which sets out a description of the Services and the user instructions for the Services;
“Effective Date” means the effective date set out in the Order Form;
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law;
“Fees” means the fees payable by the Client to CXB HUB as set out in the Order Form;
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Initial Subscription Term” means the initial term of the Agreement as set out in the Order Form;
“Renewal Period” means the period described in clause 14.1;
“Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers;
“Services” means the subscription services provided by CXB HUB to the Client under this Agreement at https://www.mycxvision.com/ or any other website notified to the Client by CXB HUB from time to time, as more particularly described in the Order Form;
“Software” means the online software applications provided by CXB HUB as part of the Services;
“Subscription Term” means has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods);
“Terms” has the meaning given to it in paragraph 1 of the Order Form;
“UK GDPR” has the meaning given to it in the Data Protection Act 2018.
“User Subscriptions” means the user subscriptions purchased by the Client pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement;
“Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
- Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to writing or written excludes fax but includes email. A reference to a statute or statutory provision: (a) is a reference to it as it is in force as at the date of this Agreement; and (b) shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision. References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the Order Form.
- Unless the context otherwise requires: (a) words in the singular shall include the plural and in the plural shall include the singular; and (b) a reference to one gender shall include a reference to the other genders.
- User subscriptions
- Subject to the Client purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, CXB HUB hereby grants to the Client a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Client's internal business operations.
- In relation to the Authorised Users, the Client undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
- it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
- each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential;
- it shall maintain a written, up to date list of current Authorised Users and provide such list to CXB HUB within 5 Business Days of CXB HUB's written request at any time or times;
- it shall permit CXB HUB or CXB HUB's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Client's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at CXB HUB's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;
- if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to CXB HUB's other rights, the Client shall promptly disable such passwords and CXB HUB shall not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 2.2(e) reveal that the Client has underpaid Fees to CXB HUB, then without prejudice to CXB HUB's other rights, the Client shall pay to CXB HUB an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within 10 Business Days of the date of the relevant audit.
- The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property,
and CXB HUB reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.
- The Client shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- use the Services and/or Documentation to provide services to third parties; or
- subject to clause 16.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
- introduce or permit the introduction of, any Virus or Vulnerability into CXB HUB's network and information systems.
- The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify CXB HUB.
- The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
- The client acknowledges and agrees that it is responsible for the acts and omissions of all persons (including Authorised Users) that access the Services and the Documentation under or in connection with this Agreement.
- Additional User Subscriptions
- Subject to clause 3.2 and clause 3.3, the Client may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and CXB HUB shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
- If the Client wishes to purchase additional User Subscriptions, the Client shall notify CXB HUB in writing. CXB HUB shall evaluate such request for additional User Subscriptions and respond to the Client with approval or rejection of the request. Where CXB HUB approves the request, CXB HUB shall activate the additional User Subscriptions within 14 days of its approval of the Client's request.
- If CXB HUB approves the Client's request to purchase additional User Subscriptions, the Client shall, within 30 days of the date of CXB HUB's invoice, pay to CXB HUB the Fees for such additional User Subscriptions as set out in the Order Form and, if such additional User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by CXB HUB for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
- CXB HUB shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this Agreement.
- CXB HUB shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
- planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
- unscheduled maintenance performed outside Business Hours, provided that CXB HUB has used reasonable endeavours to give the Client reasonable notice in advance.
- CXB HUB will, as part of the Services and in consideration of the relevant Fees, provide the Client with CXB HUB's standard customer support services during Normal Business. The Client may purchase enhanced support services separately at CXB HUB's then current rates.
- Data protection
- For the purposes of this Agreement, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
- Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
- The parties have determined that for the purposes of Applicable Data Protection Laws, CXB HUB shall process the Client Personal Data as processor on behalf of the Client. Should this determination change, the parties shall use all reasonable endeavours make necessary changes to this clause 5 and Schedule 1.
- Without prejudice to clause 5.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to CXB HUB for the duration and purposes of this Agreement.
- In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by CXB HUB, the duration of the processing and the types of personal data and categories of data subject.
- Without prejudice to clause 5.2, CXB HUB shall, in relation to Client Personal Data:
- process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in Schedule 1 unless CXB HUB is required by applicable law to otherwise process that Client Personal Data , in which case CXB HUB shall notify the Client of this before performing the processing required by the applicable law unless those applicable law prohibit CXB HUB from so notifying on important grounds of public interest;
- implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
- ensure that any personnel engaged and authorised by CXB HUB to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
- assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to CXB HUB), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
- at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless CXB HUB is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause, Client Personal Data shall be considered deleted where it is put beyond further use by CXB HUB; and
- maintain records to demonstrate its compliance with this clause 5.
- The Client provides its prior, general authorisation for CXB HUB to:
- appoint processors to process the Client Personal Data, provided that CXB HUB:
- shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on CXB HUB in this clause 5;
- shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of CXB HUB; and
- shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to CXB HUB's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify CXB HUB for any losses, damages, costs (including legal fees) and expenses suffered by CXB HUB in accommodating the objection; and
- transfer Client Personal Data outside of the UK as required for the Services, provided that CXB HUB shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of CXB HUB, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
- Third party providers
- The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. CXB HUB makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party.
- Supplier's obligations
- CXB HUB undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to CXB HUB's instructions, or modification or alteration of the Services by any party other than CXB HUB or CXB HUB's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
- CXB HUB does not warrant that (a) the Client's use of the Services will be uninterrupted or error-free; (b) that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client's requirements; or (c) the Software or the Services will be free from Vulnerabilities or Viruses.
- CXB HUB is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- This Agreement shall not prevent CXB HUB from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
- CXB HUB warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
- Subject to any obligations under clause 5, in the event of any loss or damage to Client Data, the Client's sole and exclusive remedy against CXB HUB shall be for CXB HUB to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by CXB HUB in accordance with its archiving procedure. CXB HUB shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by CXB HUB to perform services related to Client Data or Client Personal Data maintenance and back-up for which it shall remain fully liable).
- Client's obligations
- The Client shall:
- provide CXB HUB with:
- all necessary co-operation in relation to this Agreement; and
- all necessary access to (including rights to use) such information as may be required by CXB HUB;
in order to provide the Services, including but not limited to Client Data, security access information and configuration services;
- without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
- carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for CXB HUB, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by CXB HUB from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to CXB HUB's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
- The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
- If CXB HUB's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, CXB HUB shall not be liable for such delay or non-performance and shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
- Charges and payment
- The Client shall pay the Fees to CXB HUB for the User Subscriptions in accordance with this clause 9 and the Order Form, using the payment method specified in the Order Form.
- The Client shall on the Effective Date provide to CXB HUB valid, up-to-date and complete payment information (such as card details) acceptable to CXB HUB and any other relevant valid, up-to-date and complete contact and billing details.
- Where the Client pays by card, it shall provide its payment card details to CXB HUB, the Client hereby authorises CXB HUB to bill such payment card:
- on the Effective Date for the Fees payable in respect of the Initial Subscription Term; and
- subject to clause Schedule 114.1, on each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period.
- The Client shall pay invoices within 30 days of the date of such invoice.
- If CXB HUB has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of CXB HUB:
- CXB HUB may, without liability to the Client, disable the Client's password, account and access to all or part of the Services and CXB HUB shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in this Agreement:
- shall be payable in pounds sterling;
- are, subject to clause 13.4, non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to CXB HUB's invoice(s) at the appropriate rate.
- CXB HUB shall be entitled to increase the Fees at the start of each Renewal Period upon 90 days' prior notice to the Client and the Order Form shall be deemed to have been amended accordingly.
- Proprietary rights
- 10.1.The Client acknowledges and agrees that CXB HUB and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
- 10.2.CXB HUB confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
- 10.3.The Client acknowledges that its use of the Services may produce certain non-identifiable information related to its operation and use, including analytics and metrics. CXB HUB may use such non-identifiable information in any manner to develop and improve the Services, subject to clause 11.
- 11.1.“Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with the Agreement, whether before or after the date of the Agreement, including:
- the existence and terms of the Agreement;
- information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs;
- any information developed by the parties in the course of carrying out this Agreement (and the parties agree that details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information); and
- any other information that would reasonably be regarded as confidential by a reasonable business person.
- 11.2.The provisions of this clause 11 shall not apply to any Confidential Information which:
- is or becomes generally available to the public (other than as a result of the receiving party or its Representatives breaching this clause 11);
- was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
- was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by obligations of confidentiality or otherwise prohibited from disclosing the information to the receiving party;
- the parties agree in writing is not confidential or may be disclosed; or
- is developed by or for the receiving party independently of the information disclosed by the disclosing party.
- 11.3.Each party shall keep the other party's Confidential Information secret and confidential and shall not: (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement; or (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
- 11.4.A party may disclose the other party's Confidential Information to those of its Representatives on a need to know basis, provided that: (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and (b) it is at all times responsible for such Representatives' compliance with the confidentiality obligations set out in this clause 11.
- 11.5.A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
- 11.6.On termination or expiry of this Agreement, subject to clause 5, each party shall:
- destroy or if requested to do so return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
- erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
- if requested to do so, certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
- 11.7.The provisions of this clause 11 shall continue to apply after termination or expiry of this Agreement.
- 12.1.The Client shall defend, indemnify and hold harmless CXB HUB against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Services and/or Documentation.
- 12.2.CXB HUB shall defend the Client, its officers, directors and employees against any claim that the Client's use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
- CXB HUB is given prompt notice of any such claim;
- the Client does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to CXB HUB in the defence and settlement of such claim, at CXB HUB's expense; and
- CXB HUB is given sole authority to defend or settle the claim.
- 12.3.In the defence or settlement of any claim, CXB HUB may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
- 12.4.In no event shall CXB HUB, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than CXB HUB;
- the Client's use of the Services or Documentation in a manner contrary to the instructions given to the Client by CXB HUB; or
- the Client's use of the Services or Documentation after notice of the alleged or actual infringement from CXB HUB or any appropriate authority.
- 12.5.The foregoing and clause 13.4 state the Client's sole and exclusive rights and remedies, and CXB HUB's (including CXB HUB's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- Limitation of liability
- 13.1.Subject to clause 13.2, except as expressly and specifically provided in this Agreement:
- the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. CXB HUB shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to CXB HUB by the Client in connection with the Services, or any actions taken by CXB HUB at the Client's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
- the Services and the Documentation are provided to the Client on an “as is” basis.
- 13.2.Nothing in this Agreement limits or excludes the liability of a party:
- for death or personal injury caused by its negligence;
- for fraud or fraudulent misrepresentation; or
- any other liability which cannot be limited or excluded by applicable law.
- 13.3.Subject to clause 13.1 and clause 13.2, CXB HUB shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
- loss of profits;
- loss of business;
- depletion of goodwill and/or similar losses;
- loss or corruption of data or information (other than personal data);
- pure economic loss; or
- any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
- 13.4.Subject to clause 13.2, CXB HUB's total aggregate liability in each Contract Year whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with this Agreement shall be limited to the greater of:
- £; and
- the total Fees paid to CXB HUB in that Contract Year.
- 13.5.Nothing in this Agreement excludes the liability of the Client for any breach, infringement or misappropriation of CXB HUB’s Intellectual Property Rights.
- Term and termination
- 14.1.This Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
- either party notifies the other party of termination, in writing, at least 45 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- it is otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
- 14.2.Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
- the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
- 14.3.On termination or expiry of this Agreement for any reason:
- except where otherwise specified, all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Services and the Documentation;
- each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- without prejudice to CXB HUB’s obligations under clause 5:
- CXB HUB may destroy or otherwise dispose of any of the Client Data in its possession unless CXB HUB receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data;
- CXB HUB shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and
- the Client shall pay all reasonable expenses incurred by CXB HUB in returning or disposing of Client Data; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
- 15.1.Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by email to the email address specified in the Commercial Terms in respect of the Client, or to the following email address in respect of CXB HUB (or an address substituted in writing by the party to be served):
CXB HUB: firstname.lastname@example.org
- 15.2.Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume, provided in each case no bounceback message is received.
- 15.3.This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- 16.1.Survival. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
- 16.2.Force majeure. CXB HUB shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 90 days, the Client may terminate this Agreement by giving written notice to CXB HUB.
- 16.3.Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- 16.4.Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- 16.5.Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- 16.6.Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 16.7.Entire agreement: (a) this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter; (b) each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement; and (c) each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- 16.8.Assignment. The Client shall not, without the prior written consent of CXB HUB, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. CXB HUB may, subject to clause 5, at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
- 16.9.No partnership. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
- Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England.
- Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE 1 – DATA PROCESSING
- The scope of the processing.
CXB HUB will process the Client Personal Data in accordance with the Agreement in order to provide the Services for the duration of the Agreement.
- The nature of the processing of the Client Personal Data
The Client Personal Data will be processed by CXB HUB to provide the Services as set out in the Agreement.
- Duration of the processing of the Client Personal Data
The processing will continue for the duration of the Agreement.
- The purpose of the processing of the Client Personal Data
The Client Personal Data will be processed in order for CXB HUB to provide the Services to the Client.
- A description of the types of Client Personal Data
The personal data will be title, first name, last name, country of residence, job position, email, password.
- A description of the categories of data subjects
The data subjects will be the Client’s employees.