TERMS AND CONDITIONS
(A) Uleska has developed certain software applications and platforms which it makes available to subscribers via the internet during the subscription period for the purpose of applying automated analysis of software security needs, and automated delivery of items which will facilitate the customer to meet those needs.
(B) The Customer wishes to use Uleska's service in its internal business operations or personal projects.
(C) Uleska has agreed to provide and the Customer has agreed to take and trial or pay for Uleska's services subject to the terms and conditions of this Agreement (as defined below).
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: the Services Agreement and these Terms and Conditions
Authorised Users: the individual user, or those employees, agents, independent contractors of the Customer who are authorised by the Customer, to use the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
Contract Information: the agreement between the parties containing the agreed commercial terms in addition to those terms set out in these Terms and Conditions.
controller, processor, personal data, personal data breach, data subject, and processing have the meanings given to these terms in the GDPR.
Customer Data: the data inputted by the individual, Customer, Authorised Users, or Uleska on the Customer's behalf (including Personal Data) for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation: the Data Protection Act 2018 and Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data including the recitals (the “GDPR”) and any equivalent or implementing legislation and all other applicable laws (including judgements of any relevant court of law) and regulations relating to the processing of personal data, data privacy, electronic communications,marketing and/or data security in each case as from time to time in force and as from time to time amended;
Documentation: the document made available to the Customer by Uleska online via www.uleska.com or such other web address notified by Uleska to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date in which the individual user or Customer accepts the terms of this Agreement.
Intellectual Property Rights: copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trademarks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights,mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not; (ii) including any applications to protect or register such rights; (iii)including all renewals and extensions of such rights or applications; (iv)whether vested, contingent or future; and (v) wherever existing;
Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
Personal Data: means any and all personal data as defined in the GDPR processed by Uleska for or on behalf of the Customer in connection with this Agreement or use of the Services.
Representative: for each party, the individual identified as such in the Contract Information.
Renewal Term: the period set out in clause 15.1.
Service Usage Data: information about the Customer’s and each Authorised User’s usage of the functionality within the Services.
Services: the services to be provided by Uleska to the individual or Customer under this Agreement as set out in the Contract Information, including the subscription services via www.uleska.com or any other website, the provision of the Software, and any additional services to be provided to the Customer by Uleska from time to time as agreed between the parties.
Software: the online or on-premise deployed software applications provided by Uleska as part of the Services.
Subscription Fee: the costs and fees associated with the User Subscriptions or Services (other than free trials) as agreed between the parties in the Contract Information.
Initial Term: the period set out in the Contract Information.
Support Services Policy: Uleska's policy for providing support in relation to the Services as made available at www.uleska.com or such other website address as may be notified to the Customer from time to time.
Term: means the Initial Term together with any subsequent Renewal Terms).
Terms and Conditions: means these terms and conditions set out in clause 1 to clause 30 (inclusive).
Trial Services: means any services provided by Uleska to the Customer pursuant to a free trial period, including the provision of any reports.
User Subscriptions: the User Subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus: 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.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes emails but not faxes.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement.
2.1 Subject to the terms of this Agreement and the payment of the applicable Subscription Fees (outside of trial periods), Uleska hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Term solely for its own internal business purposes.
2.2 No longer applicable.
2.3 The individual user or Customer shall not, and shall procure that the Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Uleska reserves the right, without liability or prejudice to its other rights to the Customer, to suspend or terminate the Customer's access to all or any part of the Services or Documentation that breaches the provisions of this clause.
2.4 The Customer shall not, and shall procure that the Authorised Users do not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror,republish, download (other than those services which explicitly allows documentation and/or code to be downloaded), display, transmit, misuse or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(c) access all or any part of the Services or Documentation in order to build a product or service which competes with the Services or Documentation;
(d) use the Services and/or Documentation other than for its own internal business purposes;
(e) use the Services and/or Documentation to provide services to third parties, except where it forms part of its regular business operations or is otherwise agreed to in writing between the parties;
(f) subject to clause 25.1,license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or make the Services and/or Documentation available to any third party; or
(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Uleska.
2.6 The rights provided under this clause are granted to the Customer only, and shall not be considered granted to anysubsidiary or holding company of the Customer.
3. Additional User Subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Term, purchase additional User Subscriptions and Uleska shall grant access to the Services and the Documentation to such additional Authorised Users or Projects in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Uleska by email. Uleska shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where Uleska approves the request, Uleska shall activate the additional User Subscriptions within 3 Business Days of its approval of the Customer's request.
3.3 If Uleska approves the Customer's request to purchase additional User Subscriptions,the Customer shall, within 30 days of the date of Uleska's invoice, pay to Uleska the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Uleska for the remainder of the Term or then current Renewal Period (as applicable).
4.1 Uleska shall, at its sole discretion, provide the Trial Services to the Customer free of charge. The terms of this Agreement shall apply to such Trial Services as if each reference to “Services” was a reference to “Trial Services”.
4.2 Notwithstanding clause 4.1,clause 9(Charges and Payment) shall not apply to the provision of the Trial Services.
4.3 Uleska shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.4 Uleska shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance optionally carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that Uleska has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance.
4.5 Uleska shall target 95% uptime. With the exception of planned maintenance, if uptime in the preceding month falls below 92.5% then the customer will be refunded 25% of their fees paid, or credits used, in the preceding month. If uptime in the preceding month falls below 90% then the customer will be refunded 50% of their fees paid, or credits used, in the preceding month. Uptime is measured by Uleska’s internal logging and breaches of these targets are communicated by your account manager on a monthly basis.
4.6 Uleska will, as part of the Services as per the terms of the Contract Information,provide the Customer with Uleska's standard customer support services with a 48-hour email support response time. Uleska may amend the Support Services Policy inits sole and absolute discretion from time to time.
5. DATA PROTECTION
5.1 If and to the extent that Uleska processes any Personal Data on behalf of the Customer as set out in the Contract Information, the provisions of this clause 5 shall apply.
5.2 Each of the parties acknowledges and agrees that for the purposes of the Data Protection Legislation the Customer is the controller and Uleska is the processor in relation to any processing by Uleska of any Personal Data.
Uleska obligations in relation to processing Personal Data
5.3 Uleska will:
(a) process the Personal Data only in accordance with the Customer’s written instructions from time to time; or as otherwise required by law;
(b) immediately notify the Customer if Uleska believes any of the Customer’s instructions relating to processing Personal Data breaches any Data Protection Legislation;
(c) only disclose the Personal Data to, and ensure that access to the Personal Data is limited to, those of its personnel who are bound by confidentiality obligations in relation to the Personal Data;
(d) nottransfer any Personal Data to an internationalorganisation or any country (other than the United Kingdom) outside theEuropean Union;
(e) implement appropriate technical and organisational, as set out in Article 28(3)(c) GDPR, to ensure a level of security appropriate to the data security risks presented by processing the Personal Data;
(f) not sub-contract the processing of any Personal Data without the consent of the Customer;
(g) Uleska will take appropriate technical and organisational measures to assist the Customer in fulfilling the Customer’s obligations to respond to any request by any data subject to exercise any data subject right under the Data Protection Legislation;
(h) at the Customer’s reasonable request assist the Customer in complying with the Customer’s obligations pursuant to the Data Protection Legislation such as:
(i) implementing appropriate technical and organisational measures to ensure appropriate security of processing;
(ii) notifying personal data breaches to the regulator and the relevant data subjects;
(iii) carrying out a data protection impact assessment; and/or
(iv) consulting with the regulator before processing if any data protection impact assessment indicates processing would result in a high risk in the absence of mitigating measures; and
(i) at the Customer’s request, make available to the Customer all information required to demonstrate Uleska’s compliance with this Agreement and on reasonable notice allow the Customer, its statutory and regulatory auditors access to such information as the Customer may require in order to verify Uleska’s compliance with its obligations in relation to data processing under this Agreement.
5.4 Upon termination or expiry of this Agreement for any reason, Uleska shall:
(a) at the Customer’s option, delete or return to the Customer all Personal Data; and
(b) delete all copies of the Personal Data except insofar as Uleska reasonably considers it is required by law to continue to store such copies.
5.5 The Customer will reimburse Uleska for any reasonable costs reasonably incurred by Uleska in performing its obligations under this clause 5, in each case except to the extent that such costs were incurred as a result of any breach by Uleska of any of its obligations under this clause 5.
5.6 The Customer represents, warrants and undertakes to Uleska that the Customer has obtained the Personal Data in accordance with the Data Protection Legislation and has provided (or will provide) all necessary notices to data subjects whose personal data comprises part of the Personal Data; and it has (or will at the required time have) one or more valid grounds for Uleska’s processing of the Personal Data in accordance with this Agreement so that Uleska’s processing of the Personal Data in accordance with this Agreement complies with the Data Protection Legislation.
5.7 The types of Personal Data, categories of data subject to whom it relates, and the subject matter, duration, nature and purposes of the processing to be carried out under this Agreement are set out in the Contract Information.
6. Third party providers
7. Uleska's obligations
7.1 Uleska undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 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 Uleska's instructions, or modification or alteration of the Services by any party other than Uleska or Uleska's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Uleska will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.Notwithstanding the foregoing, Uleska:
(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Agreement shall not prevent Uleska 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.
8. Customer's obligations
The Customer shall:
8.1 provide Uleska with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by Uleska;
in order to provide the Services, including but not limited to Customer Data,security access information and configuration services;
8.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.3 carryout all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Uleska may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.4 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;
8.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Uleska, its contractors and agents to perform their obligations under this Agreement,including any third party software licences;
8.6 ensure that its network and systems comply with the relevant specifications provided by Uleska from time to time; and
8.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Uleska's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8.8 The Customer warrants that Uleska’s performance of the Services shall not infringe the rights (including the Intellectual property Rights) of any of the Customer’s third party providers.
9. Charges and payment
9.1 The Customer shall pay the Subscription Fees to Uleska for the User Subscriptions or Services in accordance with this clause 9 and clause 3.3 and as agreed between Uleska and the Customer under the Contract Information.
9.2 The Customer shall, within 30 days of the Effective Date provide to Uleska payment for the agreed services, if the Customer provides:
(a) its approved purchase order information to Uleska, Uleska shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Term; and
(ii) subject to clause 15.1,on a monthly basis thereafter or as per the terms agreed in the Contract Information,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If Uleska has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Uleska:
(a) Uleska may, without liability to the Customer, suspend the Customer's password, account and access to all or part of the Services and Uleska shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Uleska's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
9.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Uleska's invoice(s) at the appropriate rate.
9.5 Uleska shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions or Services purchased pursuant to clause 3.3,the support fees payable pursuant to clause 4.6 at the start of each Renewal Period upon 30 days’ prior notice to the Customer.
10. INTELLECTUAL PROPERTYRIGHTS
10.1 All Intellectual Property Rights belonging to any Party prior to or developed independently of this Agreement, shall remain at all times the property of that Party or its licensors and no Party shall acquire any right, title and/or interest in or have any right to use the other Party’s Intellectual Property Rights as a result of this Agreement except for the purpose of carrying out its obligations under this Agreement.
10.2 Uleska shall, during the Term, make the Service available to the Customer on and subject to the terms of this Agreement. Uleska grants to the Customer anon-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Service during the Term and in accordance with the Documentation solely for the Customer's internal business purposes and subject to the terms of this Agreement. Such access and licence are granted only in respect of the number of User Subscriptions set out in the Contract Information or purchased in accordance with clause 3.1.
10.3 Uleska grants to the Customer a non-exclusive, perpetual, royalty-free,non-transferable licence following the termination of this Agreement to retain the documents generated by the Customer using the Service during the Term.
10.4 The Customer hereby grants to Uleska and its affiliates a worldwide, perpetual,irrevocable, royalty-free licence to use and incorporate into its Service any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer or Authorised Users relating to the operation of Uleska’s or its affiliates’ services.
10.5 The Customer acknowledges and agrees that Uleska and/or its licensors own all Intellectual Property Rights in the Service, and anything developed or delivered by or on behalf of Uleska to the Customer under this Agreement,including any modifications and/or derivative works of the aforementioned(together the “Uleska Materials”).Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in respect of the Uleska Materials. For the avoidance of doubt and without limitation, the structures of databases, APIs,user interface designs, and graphic designs used within the Software, as well as the Service Usage Data and the Documentation, shall constitute Uleska Materials. However, the Customer and its licensors shall own all Intellectual Property Rights in the Customer Data.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third-party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4,each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third-party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 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 and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third-party.
11.6 The Customer acknowledges that details of the Services, any reports or outcomes generated by the Services and the results of any performance tests of the Services, constitute Uleska's Confidential Information.
11.7 Uleska acknowledges that the Customer Data is the Confidential Information of the Customer.
11.8 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.9 The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
12.1 The Customer shall defend, indemnify and hold harmless Uleska against claims,actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation,provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Uleska provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 Uleska shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts (subject always to clause 13.3(b))awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Uleska is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Uleska in the defence and settlement of such claim, at Uleska's expense; and
(c) Uleska is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Uleska may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available,terminate this Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Uleska, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Uleska; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Uleska; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Uleska or any appropriate authority.
12.5 The foregoing and clause 13.3(b)state the Customer's sole and exclusive rights and remedies, and Uleska's (including Uleska's employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Uleska shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Uleska by the Customer in connection with the Services, or any actions taken by Uleska at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is”basis.
13.2 Nothing in this Agreement excludes the liability of Uleska:
(a) for death or personal injury caused by Uleska's negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clauses 13.1,13.2 and 13.4:
(a) Uleska shall not be liable whether in tort (including for negligence or breach of statutory duty), contract or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Uleska's total aggregate liability in contract (including in respect of the indemnity at clause 12.2),tort (including negligence or breach of statutory duty) or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid under this Agreement during the 12 months immediately preceding the date on which the claim arose.
13.4 Subject to clause 13.2, the Customer acknowledges and agrees that Uleska shall have no liability of any kind in any circumstances whatsoever to the Customer in respect of the Trial Services or any materials that it provides to the Customer pursuant to the Trial Services.
14. SUSPENSION OF ACCESS
14.1 Uleska may suspend access to the Services to all or some of the Authorised Users:
(a) if Uleska suspects that there has been any misuse of the Software or breach of this Agreement; or
(b) in accordance with clause 9.3(a) for failure to pay any sums due to Uleska.
14.2 Where the reason for suspension is the suspected misuse of the Services or breach of this Agreement, without prejudice to its rights, Uleska shall take steps to investigate the issue and may restore or permanently suspend access at its discretion. If Uleska considers it appropriate to permanently suspend access to all Authorised Users, it will notify the Customer in writing and this Agreement will terminate immediately on service of such notice.
14.3 In relation to a suspension under clause 9.3(a), access to the Services will be restored promptly after Uleska receives payment in full and cleared funds.
14.4 The Subscription Fee shall remain payable during any period of suspension notwithstanding that the Customer or some of the Authorised Users may not have access to the Services.
15. Term and termination
15.1 This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 6 months or 12 months as per the terms of the Contract Information (each a RenewalTerm), unless:
(a) either party notifies the other party of termination, in writing, at least 15 days before the end of any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Renewal Term; or
(b) this Agreement is otherwise terminated in accordance with its terms.
15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice by email to the other party if:
(a) 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;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(d) to clause 15.2(j)(inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a Change of Control of the other party.
15.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services (as applicable);
(b) each party shall return and make no further use of any equipment, property or other items (and all copies of them) belonging to the other party;
(c) if so requested by Uleska, the Customer shall remove, or permit Uleska to remove,all code created pursuant to the Services from its software and/or applications;
(d) Uleska may destroy or otherwise dispose of any of the Customer Data in its possession unless Uleska receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Uleska shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Uleska in returning or disposing of Customer Data; and
(e) 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.
15.4 Notwithstanding clause 15.3(c), if either party terminates this Agreement and the parties agree that the Customer can continue to licence the code created pursuant to the Services from its software and/or applications, the parties shall enter into a licence agreement in relation to such code which shall, inter alia, require the Customer to pay a licence fee to Uleska.
16.1 The Customer shall permit Uleska and/or its advisors, on reasonable written notice from Uleska and during Normal Business Hours, to enter the premises of the Customer and to access such systems and information as is reasonably necessary for Uleska to verify the Customer’s compliance with the terms of this Agreement(“Audit”).
16.2 In the event that any non-compliance is discovered, either through the Audit or the Service Usage Data, the Customer shall rectify such non-compliance(including any underpayment of Subscription Fees) within 15 days of notice from Uleska requiring the same.
17. DISPUTE RESOLUTION
17.1 Any dispute any dispute or difference of opinion (a “Dispute”)arising between Uleska and the Customer in respect of or arising out of this Agreement shall be dealt with in accordance with this clause 7.
17.2 The parties shall negotiate in good faith to attempt to resolve the Dispute.
17.3 In the first instance, the Representative of each party shall each attempt to resolve the Dispute. If the Dispute cannot be resolved by the Representatives within ten (10) days of the date of the first contact between the Representatives, it shall be referred to a senior officer of each party who shall attempt to resolve the Dispute.
17.4 In the event that a Dispute cannot be resolved in accordance with clause 17.3 within twenty (20) days of the date of the first written communication between the senior officers, either party may seek all available remedies at law or equity in accordance with clause 29.
17.5 Nothing in this clause shall prevent or delay either party from seeking injunctive or any other form of equitable relief.
18. Force majeure
Uleska shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes,lock-outs or other industrial disputes (whether involving the workforce of Uleska or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in these Terms and Conditions and the Contract Information, the provisions in the Contract Information shall prevail.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22. 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.
23.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
24. Entire agreement
24.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties,representations and understandings between them, whether written or oral,relating to its subject matter.
24.2 Each party acknowledges that in entering into this Agreement it does not rely on,and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
24.4 Nothing in this clause shall limit or exclude any liability for fraud.
25.1 The Customer shall not, without the prior written consent of Uleska, assign,transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
25.2 Uleska may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
26. No partnership or agency
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).
27. Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of ThirdParties) Act 1999.
28.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or by email to the other party at its address set out in this Agreement,or such other address as may have been notified by that party for such purposes.
28.2 A notice delivered by hand shall be deemed to have been received when delivered(or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post or by email shall be deemed to have been received at the time at which it would have been delivered in the normal course of post or by email at the time of transmission. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
29. 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 construed in accordance with the law of England.
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).