General Terms and Conditions
These General Terms and Conditions set out Saberr's and the Customer's legal rights and obligations in relation to the use of the Platform, Application and Services.
1. Definitions and interpretation
1.1 In the Agreement:
"Acceptable Use Policy" means the acceptable use policy set out in Schedule 1 to these General Terms and Conditions, as it may be updated from time to time by Saberr publishing a new version in the Application;
"Agreement" means the agreement between the Customer and Saberr for the provision of the Application as a service, incorporating:
- (a) the Services Order Form;
- (b) these General Terms and Conditions and (if applicable) the Subscription Terms and Conditions; and
- (c) the Acceptable Use Policy;
and any amendments to that agreement from time to time;
"Application" means Saberr's CoachBot software application or Base software application as identified in the Services Order Form, which will be made available by Saberr to the Customer as a service via the internet under these General Terms and Conditions;
"Billing Period" means the period of time for which Saberr issues invoices in respect of Application usage, as specified on the Services Order Form;
"Business Day" means any weekday, other than a bank or public holiday in England;
"Business Hours" means between 09:00 and 17:30 London time on a Business Day;
"Charges" means the amounts payable by the Customer to Saberr under or in relation to the Agreement, including the Charges set out in the Services Order Form;
"Confidential Information" means the Customer Confidential Information and/or the Saberr Confidential Information;
"Customer" means the person (natural or legal) identified as Saberr's customer on the Services Order Form;
"Customer Confidential Information" means:
- (a) any information disclosed by the Customer to Saberr before the end of the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked or described as "confidential"; or (ii) should have been reasonably understood by Saberr to be confidential;
- (b) Customer Data; and
(c) Personal Data comprised in the Saberr Data;
"Customer Data" means:
- (a) all data uploaded to, stored on, processed using or transmitted via the Application by the Customer, on the Customer's behalf, or by any person using any User Account;
- (b) the Customer Personal Data; and
- (c) the Reports,
but excluding the Saberr Data;
"Customer Personal Data" means any Personal Data supplied by or on behalf of the Customer to Saberr together with any Personal Data comprised in the Reports, but excluding the Saberr Data;
"Early Access Release" means any software program, feature, functionality, module and/or services made available by Saberr to the Customer on an early access basis, including all releases that are specified by Saberr as early access, alpha or beta releases;
"Effective Date" means the date that the Agreement comes into force in accordance with Clause 2.2;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"General Terms and Conditions" means these terms and conditions, as they may be varied from time to time in accordance with Clause 17.4;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing-off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" has the meaning given in the Data Protection Act 1998; "Platform" means the hardware and software platform managed by Saberr that
will be used to host the Application;
"Reports" means any reports created by the Application and made available to the Customer by Saberr from time to time;
"Saberr" means Saberr Limited, a company incorporated in England and Wales (registration number 08388093) having its registered office at c/o Seedcamp, Google Campus, 5 Bonhill Street, London EC2A 4BX;
"Saberr Confidential Information" means:
- (a) any information disclosed by Saberr to the Customer before the end of the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked or described as "confidential"; or (ii) should have been reasonably understood by the Customer to be confidential; and
- (b) the financial terms of the Agreement;
"Saberr Data" means the raw data supplied by users to the Application when interacting with the Application, excluding names and contact details for each User Account;
"Schedule" means a schedule to these General Terms and Conditions;
(a) all the services provided or to be provided by Saberr to the Customer using the Application;
(b) the Support Services; and
(c) any consultancy or coaching services provided under the Subscription Terms and Conditions;
"Services Order Form" means the form made available by Saberr to the Customer to enable the Customer to sign up for the Services, whether online or offline;
"Subscription Terms and Conditions" means terms and conditions governing the payment of Charges and other matters relating to paid subscriptions for access to the Application;
"Support Services" means the provision of support and assistance in relation to the use of the Application and the identification and resolution of faults in the Application;
"Term" means the term of the Agreement;
"Third Party Services" means any software-based hosted or cloud service owned and operated by a third party that may transmit data to and/or from the Application;
"User" means an individual identified in a User Account who may access the Application by means of that User Account (and providing that, if the Agreement relates to CoachBot, an individual whose User Account is associated with 2 different teams shall be counted twice for the purposes of calculating licensing restrictions and the Charges, unless Saberr has agreed otherwise in writing); and
"User Account" means a user account on the Platform created by the Customer or created for the Customer by Saberr.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
2. Agreement and Term
2.1 In order to sign up for access to the Application and Services, one of the following procedures must be completed:(a) the parties must execute a hard-copy Services Order Form; or(b) the Customer must complete and submit the online Services Order Form on Saberr's website; and Saberr must send to the Customer a written communication confirming that the Customer has been given access to the Application and Services.
2.2 The Agreement will come into force between Saberr and the Customer when one of the procedures detailed in Clause 2.1 is completed (the "Effective Date").
2.3 Once in force, the Agreement will continue in force indefinitely, unless and until terminated in accordance with its express terms.
3. Trials, subscriptions and Early Access Releases
3.1 If the Services Order Form specifies that the Application shall be made available on trial basis, then:(a) the Customer shall have no obligation to pay the Charges in respect of the use of the Application during the trial period;(b) the Customer shall have access to such functionality of the Application as Saberr may in its sole discretion permit from time to time; and(c) either party may terminate the Agreement immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay any Charges in respect of Application usage or Support Services will arise).
3.2 If the Application is made available upon a trial basis, and the parties subsequently agree a Services Order Form specifying that Charges shall be payable in respect of Application usage, then the Agreement shall continue in force, save that the later Services Order Form shall supersede the earlier Services Order Form.
3.3 In all cases where Charges are payable in respect of Application usage, the Subscription Terms and Conditions shall apply in addition to these General Terms and Conditions.
3.4 This Clause 3.4 applies to each Early Access Release made available by Saberr to the Customer, whether or not Charges apply in relation to the Early Access Release, and takes precedence over the other provisions of the Agreement:
(a) the provision of any Early Access Release to the Customer shall be at Saberr's sole discretion;
(b) Early Access Releases may not be fully functional and are liable to contain material bugs and errors;
(c) Saberr does not undertake to provide any Support Services or other ancillary services in relation to Early Access Releases;
(d) Saberr gives no warranties and makes no representations in relation to Early Access Releases, and in particular the warranties set out in the Agreement shall not apply in respect of Early Access Releases;
(e) the use of an Early Access Release is at the Customer's own risk; and
(f) Saberr may suspend or terminate the Customer's right to use any Early Access Release at any time at its sole discretion.
4. Platform and Application
4.1 Upon the Effective Date, Saberr shall enable the Customer to access the Application and Services and create User Accounts.
4.2 Subject to Clauses 4.3 and 4.4, Saberr hereby grants to the Customer a non-exclusive licence to use the Application by means of a web browser for the Customer's own internal business purposes during the Term.
4.3 The Customer must:
(a) permit only employees, officers and subcontractors of the Customer to use User Accounts with administrator rights;
(b) ensure that only the Customer and persons authorised by the Customer use the Application via a User Account, and that the only user of a User Account is the person identified in that User Account;
(c) comply at all times with the terms of the Acceptable Use Policy;
(d) ensure that all persons who use the Application or Services, whether by means of a User Account or otherwise, comply with the Acceptable Use Policy, these General Terms and Conditions and where applicable the Subscription Terms and Conditions;
(e) keep all User Account passwords confidential and secure, and only disclose such passwords to persons who are permitted to use the Application in accordance with the provisions of this Clause 4.3; and
(f) notify Saberr immediately if the Customer believes that a User Account password has been improperly disclosed or misused, or if a User Account has been accessed or used by any unauthorised person.
4.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license the Customer's rights to use the Application and Services under the Agreement;
(b) the Customer must not modify or alter, or attempt to modify or alter, the Application;
(c) the Customer must not hack or attempt to gain unauthorised access to any part of the Application or Services; and
(d) the Customer must not sell or resell the Services without Saberr's prior written consent.
4.5 The Customer will be responsible for any misuse of the Application arising out of any failure to comply with the provisions of Clause 4.3, and subject to Clause 10.1 Saberr shall not be liable to the Customer in respect of any loss or damage arising out of any such misuse.
4.6 The maximum number of Users shall be subject to any express restriction set out in the Services Order Form. If the Agreement relates to CoachBot, then unless Saberr agrees otherwise in writing, the Customer shall be allocated a single team in the Application and all the User Accounts shall be associated with that team.
4.7 All Intellectual Property Rights in the Application and Platform shall, as between the parties, be Saberr's exclusive property.
4.8 For the avoidance of doubt, the Customer has no right to access any computer code of the Application or Platform (including source code, intermediate code and object code), either during or after the Term.
4.9 The Customer acknowledges that Saberr will monitor the Customer's use of the Platform, but this shall not affect Saberr's confidentiality obligations under Clause 12 or its data protection obligations under Clause 11.
5. Availability, maintenance and back-ups
5.1 Saberr shall use reasonable endeavours to maintain the Application at 100% availability during the Term, but does not guarantee this.
5.2 Saberr may suspend access to the Application in order to carry out scheduled or emergency maintenance. Saberr shall use reasonable endeavours to ensure that scheduled maintenance is carried out outside Business Hours. Saberr shall give to the Customer advanced notice of scheduled maintenance, including details of the expected Application downtime.
5.3 The Customer acknowledges that from time to time Saberr may apply upgrades/updates to the Application and that such updates/upgrades may result in changes to the appearance and/or functionality of the Application. Saberr will give to the Customer reasonable prior written notice of any significant changes.
5.4 Saberr shall make daily back-ups of the data stored on the Platform. If the Customer suffers any loss or corruption of data stored on the Platform as a result of any breach by Saberr of the terms of the Agreement then Saberr shall use all reasonable endeavours to restore such lost or corrupted data from the latest available back-up.
6. Support Services
6.1 Saberr shall make available to the Customer a helpdesk.
6.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.3 Saberr shall provide telephone and email address details to the Customer for accessing the helpdesk.
6.4 Saberr shall use reasonable endeavours to ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
6.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
6.6 Saberr shall respond to a request for Support Services promptly and shall use reasonable endeavours to resolve issues raised through the Support Services.
6.7 The Support Services shall be provided remotely.
6.8 Saberr shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Application by the Customer; or
(b) the use of the Application via any non-supported web browser.
7.1 All the Intellectual Property Rights in Customer Data will remain the Customer's property and the property of the Customer's licensors, subject to Clause 7.2.
7.2 The Customer grants to Saberr a non-exclusive licence to store, copy and otherwise use Customer Data on and in relation to the Platform for the purposes of operating the Platform and Application, providing the Services, fulfilling Saberr's obligations under the Agreement and exercising Saberr's rights under the Agreement. The Customer also grants to Saberr the right to sub-license these rights insofar as reasonably required for these purposes.
7.3 The Customer warrants and represents to Saberr that neither the Customer Data nor the Saberr Data will breach the terms of the Acceptable Use Policy.
7.4 If Saberr reasonably suspects that there has been a breach by the Customer of Clause 6.3, Saberr may:
(a) delete or amend the relevant elements of Customer Data or Saberr Data; and/or
(b) suspend any or all of the Services and/or the Customer's access to the Application while Saberr investigates the matter.
8. Third Party Services integrations
8.1 Saberr may integrate any Third Party Services with the Application at any time; and Saberr may remove, suspend or limit any Third Party Services integration at any time.
8.2 The supply of Third Party Services shall be under a separate contract or arrangement between the Customer or a User and the relevant third party. Saberr does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services.
8.3 The use of some features of the Application may depend upon the Customer or a User enabling and agreeing to integrations between the Application and Third Party Services.
8.4 The Customer acknowledges that:
(a) the integration of Third Party Services may entail the transfer of Customer Data from the Application to the relevant Third Party Services; and
(b) Saberr has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Third Party Services.
8.5 The Customer or the User who enables an integration shall have the opportunity to consent to transfers of Customer Data to any Third Party Services operator.
8.6 The Customer warrants to Saberr that the transfer of Customer Data by Saberr to a provider of Third Party Services in accordance with this Clause 8 will not infringe any person's legal or contractual rights and will not put Saberr in breach of any applicable laws (including applicable data protection laws).
8.7 Fees may be payable by the Customer or the relevant User to the relevant third party in respect of the use of Third Party Services.
8.8 Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 10.1:
(a) Saberr gives no warranties or representations in respect of any Third Party Services; and
(b) Saberr shall not be liable to the Customer or any User in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.
9.1 Saberr warrants and represents to the Customer that:(a) Saberr has the legal right and authority to enter into and perform its obligations under the Agreement;(b) Saberr will perform its obligations under the Agreement with reasonable care and skill; and(c) the Application will not infringe any person's Intellectual Property Rights (excluding patent rights) under English law.
9.2 The Customer warrants and represents to Saberr that:
(a) the Customer has the legal right and authority to enter into and perform its obligations under the Agreement; and
(b) all the information that the Customer supplies to Saberr in relation to the Agreement (including all User Account information) is true, non-misleading, up to date and reasonably complete.
9.3 The Customer acknowledges that:
(a) save as expressly provided in the Agreement, Saberr does not make any warranties or representations as to the nature or performance of the Platform, Application or Services;
(b) complex software is never wholly free from defects, errors and bugs, and Saberr gives no warranty or representation that the Platform or Application will be wholly free from such defects, errors and bugs;
(c) whilst Saberr shall use industry standard security measures to secure the Platform and Application, complex software is never wholly free from security vulnerabilities, and Saberr gives no warranty or representation that the Platform or Application will be wholly free from such vulnerabilities;
(d) Saberr does not warrant or represent that the Platform or Application will be compatible with any other application, program or software;
(e) the Customer is responsible for determining whether the Platform, Application and Services meet the Customer's requirements, and Saberr does not warrant or represent that the Platform, Application or Services will meet those requirements;
(f) transfers of unencrypted (or insufficiently encrypted) data via the internet are inherently insecure; and
(g) Saberr will not and does not purport to provide any legal, taxation or accountancy advice under or in relation to the Agreement and (except to the extent expressly provided otherwise) Saberr does not warrant or represent that the Platform, Application or Services will not give rise to any civil or criminal liability on the part of the Customer or any other person.
9.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law and subject to Clause 10.1, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
10. Limitations and exclusions of liability
10.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Agreement:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under the Agreement or in relation to the
subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
10.3 Saberr will not be liable to the Customer in respect of any loss of profits, income, revenue, turnover, use, production or anticipated savings.
10.4 Saberr will not be liable to the Customer for any loss of business, contracts or commercial opportunities.
10.5 Saberr will not be liable to the Customer for any loss of or damage to goodwill or reputation.
10.6 Saberr will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
10.7 Saberr will not be liable to the Customer for any losses arising out of a Force Majeure Event.
10.8 Subject to Saberr's compliance with Clauses 5.4 and 9.3(c), Saberr will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
10.9 Saberr will not be liable to the Customer in respect of any loss or damage arising out of the interruption to a business process due to the temporary unavailability of the Platform or Application and/or suspension of the Services.
10.10 Subject to Saberr's compliance with Clause 9.3(c), Saberr will not be liable to the Customer for any loss or damage arising out of a computer virus, worm, logic bomb or Trojan horse transmitted to the Customer via the Platform, Application or Services.
10.11 Saberr will not be liable to the Customer for any loss or damage arising from a denial of service attack.
10.12 Saberr will not be liable to the Customer for any loss or damage arising out of any act or omission of any person using a User Account, including any loss or damage arising out of a failure to keep passwords confidential.
10.13 Saberr will not be liable to the Customer in respect of any loss or damage arising out of the use by the Customer of an Early Access Release.
10.14 Saberr's liability to the Customer in relation to any event or series of related events will not exceed the greater of:
(a) GBP 10,000; and
(b) the total amount paid and payable by the Customer to Saberr under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
11. Data protection
11.1 The Customer warrants that the Customer has the legal right to disclose all Customer Personal Data.
11.2 The Customer shall be the data controller in respect of all Customer Personal Data, and accordingly the Customer shall be responsible for ensuring that appropriate legal and privacy notices are provided to individuals in respect of such Customer Personal Data, and that all necessary consents are obtained in relation to such Customer Personal Data.
11.3 Saberr shall be the data controller in respect of all Saberr Data, and accordingly Saberr shall be responsible for ensuring that appropriate legal and privacy notices are provided to individuals in respect of such Saberr Data, and that all necessary consents are obtained in relation to such Saberr Data. Notwithstanding this, the provisions of Clauses 11.4(c), 11.4(d), 11.4(e) and 11.9 shall apply in relation to Personal Data comprised in the Saberr Data as they apply in relation to the Customer Personal Data.
11.4 Saberr warrants and undertakes to the Customer that:
(a) it will only process the Customer Personal Data for the purposes of the Agreement;
(b) it will act only on instructions from the Customer in relation to the processing of any Customer Personal Data;
(c) Customer Personal Data shall not be transferred by Saberr to any place outside the European Economic Area without the Customer's prior written consent, providing that the Customer consents to the transfer of Customer Personal Data to Saberr's software development subcontractors outside the European Economic Area where reasonably necessary for the performance of their duties and subject to Saberr putting in place adequate safeguards in relation to such transfers;
(d) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing, and against loss or corruption, of Customer Personal Data; and
(e) it will process the Customer Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
11.5 Saberr shall promptly comply with any request from the Customer requiring Saberr to amend or delete the Customer Personal Data.
11.6 At the Customer's request and subject to the Customer agreeing to pay Charges at Saberr's standard times and materials rates in relation to the work, Saberr shall provide to the Customer a copy of all the Customer Personal Data held by it in a format reasonably requested by the Customer.
11.7 If Saberr receives any complaint, notice or communication which relates to the processing of the Customer Personal Data or its compliance with the Data Protection Act 1998 in relation to Customer Personal Data, it shall immediately notify the Customer and it shall provide the Customer with full co-operation and assistance in relation to any such complaint, notice or communication.
11.8 Saberr shall promptly inform the Customer if any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable.
11.9 Without prejudice to the restrictions in Clause 11.4, the Customer acknowledges that:
(a) Saberr uses third parties to provide the technology necessary to run the Services, and that Customer Personal Data may be transferred to those third parties in the course of the provision of the Services; and
(b) the Platform is multi-tenanted, and accordingly Customer Personal Data stored using the Application may share the same databases and storage devices as data supplied by third parties.
11.10 Saberr shall ensure that access to the Customer Personal Data is limited to those employees and subcontractors who need access to the Customer Personal Data to meet Saberr's obligations under the Agreement; and in the case of any access by any employee or subcontractor, access shall be limited to such part or parts of the Customer Personal Data as are strictly necessary for performance of that employee's or subcontractor's duties. Saberr shall ensure that all employees and subcontractors are informed of the confidential nature of the Customer Personal Data; have undertaken training in the laws relating to handling Personal Data; and are aware both of Saberr's duties and their personal duties and obligations under such laws and the Agreement. Saberr shall take reasonable steps to ensure the reliability of any of Saberr's employees and subcontractors who have access to the Customer Personal Data.
11.11 Saberr shall notify the Customer within 1 Business Day if it receives a request from a data subject for access to that person's Customer Personal Data. Saberr shall provide the Customer with full co-operation and assistance in relation to any request made by a data subject to have access to that person's Customer Personal Data. Saberr shall not disclose the Customer Personal Data to any data subject or to a third party other than as required by law, at the request of the Customer or as provided for in the Agreement.
12. Confidentiality and publicity
12.1 The Customer agrees and undertakes:
(a) that it will keep all Saberr Confidential Information strictly confidential and will not disclose any part of it to any other person without Saberr's prior written consent; and
(b) that it will use the same degree of care to protect Saberr Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2 Saberr agrees and undertakes:
(a) that it will keep all Customer Confidential Information strictly confidential and will not disclose any part of it to any other person without the Customer's prior written consent; and
(b) that it will use the same degree of care to protect the Customer Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care.
12.3 Notwithstanding Clauses 12.1 and 12.2, either party may disclose the Confidential Information of the other party to its officers, employees, professional advisers, insurers, agents and subcontractors who:
(a) have a need to have access to the Confidential Information for the performance of their work; and
(b) are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
12.4 This Clause 12 imposes no obligations upon a party with respect to Confidential Information of the other party that:
(a) is known to the first party before disclosure by the other party, and is not subject to any obligation of confidentiality;
(b) is or becomes publicly known through no act or default on the part of the first party; or
(c) is obtained by the first party from a third party in circumstances where it has no reason to believe that there has been a breach of a duty of confidence.
12.5 The restrictions in this Clause 12 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, or any judicial or governmental request or order, or pursuant to the disclosure requirements relating to the listing of the stock of a party on any recognised stock exchange.
12.6 Subject to the confidentiality restrictions in this Clause 12 and unless the Customer has requested otherwise in writing, Saberr may publicly disclose that the Customer is a customer of Saberr for the Application and Services using the Customer's name and logo.
13.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination expiring at the end of a Billing Period.
13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
13.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
(d) if the other party is an individual, that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.4 Saberr may terminate the Agreement immediately by giving written notice of termination to the Customer if the Customer fails to pay to Saberr any amount due to be paid under the Agreement by the due date.
14. Effects of termination
14.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.3, 7.7, 8.8, 10, 12, 14 and 17.
14.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
14.3 If the Customer so requests in writing within the period of 30 days following the termination of the Agreement, Saberr shall provide to the Customer a single copy of the Customer Data stored on the Platform, in a format selected by Saberr in its sole discretion. The Customer Data shall be provided to the Customer within the period of 5 Business Days following the receipt by Saberr of the request from the Customer. The Customer acknowledges that such Customer Data will be provided in its raw form and may not be suitable for any particular purpose. Saberr shall only transform the Customer Data into another format upon agreement with the Customer as to the terms of and Charges for such transformation.
14.4 At any time following the end of the 30-day period following the date of termination, Saberr may delete from Saberr's computer systems all Customer Data.
14.5 Notwithstanding Clause 14.4, the Customer acknowledges that Saberr may:
(a) retain Customer Data in Saberr's systems after the date of termination, whether for technical reasons, legal reasons or otherwise; and the licence set out in Clause 6.2 shall continue after termination to the extent necessary for Saberr to exercise Saberr's rights under this Clause 14.5; and
(b) retain and use Saberr Data after the date of termination.
14.6 The Customer will not be entitled to any refund of the Charges upon the termination of the Agreement, nor will the Customer be released from any liability to pay Charges that have accrued before the date of effective termination.
15.1 Any notice given under the Agreement must be in writing (whether or not described as "written notice" in the Agreement) and must be delivered personally or by courier, or sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address
given below (or as notified by one party to the other in accordance with this Clause).
Saberr, Labs, 90 High Holborn, London, United Kingdom, WC1V 6LJ firstname.lastname@example.org
The person, address and email address set out on the Services Order Form.
15.2 If a party receives a notice by email under Clause 15.1, that party must promptly and in any event within 5 Business Days of receipt send an acknowledgement of receipt to the other party.
15.3 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) if the notice is delivered personally or sent by courier, at the time of delivery;
(b) if the notice is sent by recorded signed-for post, 48 hours after posting; and(c) if the notice is sent by email, upon the sending of a written acknowledgement of receipt by the recipient.
16. Force Majeure Event
16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
(a) forthwith notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 The Agreement shall be governed by and construed in accordance with English law; and the courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
17.2 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
17.3 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.4 Save as expressly provided otherwise, the Agreement may only be varied:
(a) by the express written agreement of both parties;
(b) by Saberr unilaterally on at least 5 days' written notice if the Customer is using the Application on a free trial basis; or
(c) by Saberr unilaterally on at least 45 days' written notice expiring at the end of a Billing Period.
17.5 Each party hereby agrees that the other party may freely assign the entirety of the other party's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the other party's business from time to time. Subject to this, neither party may without the other party's prior written consent assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
17.6 The Customer hereby agrees that Saberr may subcontract any of Saberr's obligations under the Agreement.
17.7 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate or rescind, or agree any amendment, waiver, variation or settlement under or relating to, the Agreement are not subject to the consent of any third party.
17.8 Subject to Clause 10.1:
(a) the Agreement constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
Acceptable Use Policy
1. This policy
This Acceptable Use Policy (the "Policy" ) sets out the rules governing the use of our hosted services (the "Services") and any data, content and materials that you may submit using the Services or process using the Services ("Data").
By using our Services, you agree to the rules set out in this Policy.
2. General restrictions
You must not use our Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services or any of the areas of the Services.
You must not use our Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
3. Discriminatory purposes
Without prejudice to the generality of Paragraph 2, you must not use our Services in any way that is unlawfully discriminatory under any applicable law.
4. Unlawful and illegal Data
You must not use our Services to store, host, copy, distribute, display, publish, transmit or send Data that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case, in any jurisdiction and under any applicable law).
Data must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off or other intellectual property rights;
(d) infringe any rights of confidence, rights of privacy or rights under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime;
(g) be in contempt of any court, or in breach of any court order;
(h) be in breach of racial or religious hatred legislation or discrimination legislation;
(i) be blasphemous;
(j) be in breach of official secrets legislation; or
(k) be in breach of any contractual obligation owed to any person.
You must not use the Services to process any Data that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.