LICENCE TERMS AND CONDITIONS FOR THE PORTAL

PLEASE READ THESE LICENCE TERMS CAREFULLY

THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 14 (LIMITATION OF LIABILITY).

BACKGROUND

• A. TCS has developed a Portal, which it makes available to subscribers for free via an online system for the purpose of assistance with Data Protection compliance.
• B. The Portal is supported by advertising and as a condition of this agreement, (unless you have purchase an Ad-Free licence), when using the Portal the Customer (or their users) will be displayed advertisements from time to time.
• C. Ad-Free versions can be purchased via a Monthly Fee Package or Annual Fee Package
• D. The Customer wishes to use TCS's Portal in its business operations.
• E. TCS has agreed to provide and the Customer has agreed to take and where ad-free, pay for TCS's service, subject to the acceptance of terms and conditions of this agreement.

TERMS AND CONDITIONS

1. Interpretation
   • 1.1 The definitions and rules of interpretation in this clause apply in this agreement.
   • Ad-Free: usage of the Portal without the displaying of pop-ups or advertising in exchange for the payment of Monthly Fee Package or Annual Fee Package, displaying the services of Data Protection consultancies or other goods or services that TCS at its absolute discretion deems relevant to the Customers.
   • Annual Fee Package: set out at Schedule 1.
   • Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2
   • Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
   • Consulting Package/Consulting Time: an additional chargeable service provided by a consultant referred to the Customer, for example, in form of training, onsite support or “onboarding” of the Services.
   • Contract: the contract between TCS and the Customer for the supply of Services in accordance with these Conditions.
   • Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 6 or clause 12.7.
   • Customer: the person or firm who purchases Services from TCS.
   • Customer Data: the data inputted by the Customer, Authorised Users, or TCS on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
   • Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
   • Documentation: the document made available to the Customer by TCS online via www.thecompliancespace.com or such other web address notified by TCS 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 of this agreement being accepted by the Customer.
   • End User Licence Agreement: the agreement between the Authorised Users and TCS in relation to using the Portal, as found at https://www.thecompliancespace.com/end-user-license-agreement and upon launching the Portal.
   • Initial Subscription Term: the initial term of this agreement is a period of 12 months from the Effective Date.
   • Monthly Fee Package: set out at Schedule 1.
   • Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
   • Portal: the online application software provided by TCS as part of the Services, in which the Customer has access to a knowledgebase, compliance tooling and a service desk
   • Portal Privacy Notice: TCS’s notice in relation to the Data Protection Legislation, as located at https://www.thecompliancespace.com/privacy-notice.
   • Renewal Period: the period described in clause 1.
   • Services: the Portal or Ad-Free version of the Portal provided by TCS to the Customer under this agreement, notified to the Customer by TCS from time to time, as more particularly described in the Documentation.
   • Subscription Fees: the subscription fees payable by the Customer to TCS, as set out the Portal.
   • Subscription Term: has the meaning given in clause 1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
   • TCS: THE COMPLIANCE SPACE LTD incorporated and registered in England and Wales with company number 11789736 whose registered office is at 113 Canalside, Redhill, Surrey, England, RH1 2FH.
   • UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
   • 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 e-mail but not faxes.
   • 1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. Access to the Portal
   • 2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of this agreement, TCS hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses (unless a Subscription permitting sublicenses has been purchased), to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
   • 2.2 In relation to the Authorised Users, the Customer undertakes that:
   • each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential;
   • if at any time it becomes clear that any password has been provided to any individual who is not an Authorised User, then without prejudice to TCS's other rights, the Customer shall promptly disable such passwords and TCS shall not issue any new passwords to any such individual or TCS will disable access for the individual who is not an Authorised User.
   • 2.3 The Customer 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 TCS reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
   • 2.4 The Customer 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 Portal 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 Portal; 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 1, 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 where the Customer is a distribution partner, or
   • attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; and
   • 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 TCS.
   • 2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. Advertising, Ad-Free and referrals to external consultants
   • 3.1 The Customer acknowledges that in order to provide the Services and access to the Portal for Authorised Users free of charge, it accepts advertising revenue from third parties to advertise their goods and services on the Portal.
   • 3.2 The Customer further acknowledges that without such advertising revenue, TCS would not be able to provide this free to use model and accordingly, the Customer acknowledges and consents to the displaying of advertising on banners, pop-ups or other notifications whilst using the Portal.
   • 3.3 Acceptance by the Customer of the displaying of advertising on the Portal is a condition of use unless the Customer or their data protection consultant on their behalf has purchased Ad-Free access to the Portal through the payment of a Subscription Fee (either a Monthly Package or an Annual Package).
   • 3.4 If the Customer does not accept the display of advertising, the Customer can:
     • Decide not to use the Portal; or
     • Purchase Ad-Free access to the Portal via the payment of a Subscription Fee, in which case, no further advertising will be displayed during the Subscription Term, after which time if not renewed, will revert to an advertisement version of the Portal.
   • 3.5 As part of the advertisement version of the Portal, upon the completion of certain tasks or the pressing of certain links or buttons within the Portal, the Customer or their Authorised User may be asked if they would like to be contacted by an external third party data protection consultant in order to provide them with a Consulting Package or Consulting Time. The description of such service and the associated cost will be displayed at the time or prior to payment.
   • 3.6 By clicking on such link and requesting such referral, the Customer consents to TCS passing on contact details of the Customer or their Authorised User to allow the consultant to contact them directly.
4. Services and Consulting Packages/ Consulting Time
   • 4.1 TCS shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
   • 4.2 TCS shall use commercially reasonable endeavours to make the Portal available 24 hours a day, seven days a week, except for:
     • planned maintenance carried out from time to time; and
     • unscheduled maintenance performed outside Normal Business Hours, provided that TCS has used reasonable endeavours to give the Customer at least notice in advance.
   • 4.3 The Customer may request from TCS or by clicking a link in the Portal, a Consulting Package or Consulting Time. This is an additional service at an additional cost and on separate terms governing such consultancy. It does not (unless otherwise agreed), form part of the Subscription Fees.
   • 4.4 TCS takes no responsibility for the provision of services by a third party consultant and any arrangement shall be with the Customer and such consultant. Upon selection of a Consulting Package or Consulting Time, the Customer will be presented with the costs of such package and the terms/contract with the external consultant. The Customer acknowledges that they are entering into a separate legal agreement with such consultant, not TCS.
   • 4.5 The consultant that provides the Consulting Package or Consulting Time are separate legal entities or individuals, are not employees or connected with TCS and do not represent or have authority to bind TCS.
   • 4.6 TCS accepts no responsibility for acts or omissions of any consultant referred by TCS and/or selected by the Customer. Any claim for inadequate service should be directed to the consultant and not TCS.
   • 4.7 The Customer should notify TCS where it is unhappy with any service so that TCS can decide whether it should continue to refer Customers to such consultant.
   • 4.8 TCS shall in its absolute discretion decide whether to continue to refer Customers to said consultant.
5. Customer data
   • 5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
   • 5.2 TCS shall, in providing the Services, comply with the Portal Privacy Policy relating to the privacy and security of the Customer Data available at https://www.thecompliancespace.com/privacy-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by TCS in its sole discretion.
   • 5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
   • 5.4 The parties acknowledge that:
     • (a) if TCS processes any personal data on the Customer's behalf when performing its obligations under this agreement, the Customer is the data controller and TCS is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
     • (b) The Portal Privacy Policy sets out the scope, nature and purpose of processing by TCS, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
     • (c) TCS does not send any Personal Data outside of the EEA.
   • 5.5 Without prejudice to the generality of clause 4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to TCS for the duration and purposes of this agreement so that TCS may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer's behalf.
   • 5.6 Without prejudice to the generality of clause 4, TCS shall, in relation to any Personal Data processed in connection with the performance by TCS of its obligations under this agreement:
     • (a) process that Personal Data only on the written instructions of the Customer unless TCS is required by the laws of any member of the European Union or by the laws of the European Union applicable to TCS to process Personal Data (Applicable Laws). Where TCS is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, TCS shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit TCS from so notifying the Customer;
     • (b) not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
       • (i) the Customer or TCS has provided appropriate safeguards in relation to the transfer;
       • (ii) the data subject has enforceable rights and effective legal remedies;
       • (iii) TCS complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
       • (iv) TCS complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
     • (c) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
     • (d) notify the Customer without undue delay on becoming aware of a Personal Data breach;
     • (e) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
     • (f) maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
   • 5.7 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
   • 5.8 As between the Customer and TCS, TCS shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
   • 5.9 Either party may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
6. Third party providers

The Customer 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. TCS 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 Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not TCS. TCS recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website.  TCS does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7. TCS's obligations
   • 7.1 TCS 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 1 shall not apply to the extent of any non-conformance, which is caused by use of the Services contrary to TCS's instructions, or modification or alteration of the Services by any party other than TCS or TCS's duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, TCS 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, TCS:
     • 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
     • 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 TCS 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.
   • 7.4 TCS warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

8. Customer's obligations
   • The Customer shall:
   • (a) provide TCS with:
     • (i) all necessary co-operation in relation to this agreement; and
     • (ii) all necessary access to such information as may be required by TCS;
   • in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
   • (b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
   • (c) carry out 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, TCS may adjust any agreed timetable or delivery schedule as reasonably necessary;
   • (d) 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;
   • (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for TCS, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
   • (f) ensure that its network and systems comply with the relevant specifications provided by TCS from time to time; and
   • (g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to TCS'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.
9. Charges and payment
   • 9.1 The Portal is a free to use service. This clause 9 relates to the purchase of Ad-Free access to the Portal and the payment for a Consulting Package or Consulting Time.
   • 9.2 TCS shall take payment for any Consulting Package or Consulting Time. The Customer shall select the Consulting Package or Consulting Time they require. It is essential that the Customer reads the description carefully to ensure the package selected is correct. TCS shall take payment for such Consulting Package or Consulting Time and pass the payment and selected Consulting Package or Consulting Time information to the relevant consultant. IT IS THE CONSULTANT THAT IS PROVIDING THE CONSULTING PACKAGE OR CONSULTING TIME NOT TCS.
   • 9.3 TCS accepts payments for a Consulting Package or Consulting Time as an easy method for customers to contract with consultants. In doing so, TCS does not accept any responsibility for the acts or omissions of the Consultant.
   • 9.4 The Customer shall pay the Subscription Fees to TCS in accordance with this clause 9 and as listed on the Portal.
   • 9.5 The Customer shall on the Effective Date provide to TCS valid, up-to-date and complete credit card details or approved purchase order information acceptable to TCS and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
     • (a) its credit card details to TCS, the Customer hereby authorises TCS to bill such credit card:
       • (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term for the Annual Fee Package or as required in accordance with the Monthly Fee Package set out the Portal; and
       • (ii) subject to clause 1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.
     • (b) its approved purchase order information to TCS, TCS shall invoice the Customer:
       • (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term as set out and as listed on the Portal ,where credit/debit card details are provided, to take such card details against the invoice.
     • 9.6 If TCS has not received payment by the stated due date, and without prejudice to any other rights and remedies of TCS:
       • (a) TCS may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and TCS shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
       • (a) 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 TCS's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
     • 9.7 All amounts and fees stated or referred to in this agreement:
       • (a) shall be payable in pounds sterling;
       • (b) are non-cancellable and non-refundable;
       • (c) are exclusive of value added tax, which shall be added to TCS's invoice(s) at the appropriate rate.
     • 9.8 TCS shall be entitled to increase the Subscription Fees payable pursuant to clause 3 at the start of each Renewal Period upon 90 days' prior notice to the Customer.
10. Proprietary rights
    • 10.1 The Customer acknowledges and agrees that TCS 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 Customer 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 TCS 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.
11. Independence and Reporting
    • 11.1 The Customer acknowledges that whilst TCS will work with the Customer in the event that there is any requirement to inform a regulatory body in relation to a Personal Data breach, there may be occasions where TCS is prohibited by law from doing so and accordingly the Customer accepts that it may do so independently and without recourse to the Customer.
    • 11.2 If TCS, acting reasonably, believes that the Customer is placing undue pressure upon TCS to not report or inform any regulatory body or is being pressurised to act in a way with is contrary to or in breach of the Data Protection Legislation, TCS may, at its sole discretion, issue a notice to the Customer to remedy such issues with immediate effect or bring the Contract to an end.
    • 11.3 In the event that TCS terminates a Contract due to clause 11.2, TCS shall be entitled to all unpaid invoices and charges up to the point of termination.
12. Confidentiality
    • 12.1 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.
    • 12.2 Subject to clause 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.
    • 12.3 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.
    • 12.4 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 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    • 12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    • 12.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute TCS's Confidential Information.
    • 12.7 TCS acknowledges that the Customer Data is the Confidential Information of the Customer.
    • 12.8 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.
    • 12.9 The above provisions of this clause 12 shall survive termination of this agreement, however arising.
    • 12.10 In performing its obligations under this agreement the Customer and TCS shall comply with the End User Licence Agreement and Portal Privacy Policy.
13. Indemnity
    • 13.1 The Customer shall defend, indemnify and hold harmless TCS 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) TCS 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.
    • 13.2 TCS 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 awarded against the Customer in judgment or settlement of such claims, provided that:
      • (a) TCS is given prompt notice of any such claim;
      • (b) the Customer provides reasonable co-operation to TCS in the defence and settlement of such claim, at TCS's expense; and
      • (c) TCS is given sole authority to defend or settle the claim.
    • 13.3 In the defence or settlement of any claim, TCS 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 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
    • 13.4 In no event shall TCS, 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 TCS; or
      • (b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by TCS; or
      • (c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from TCS or any appropriate authority.
    • 13.5 The foregoing states the Customer's sole and exclusive rights and remedies, and TCS's (including TCS's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. Limitation of liability
    • 14.1 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. TCS shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to TCS by the Customer in connection with the Services, or any actions taken by TCS 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 for free (unless an Ad-Free access is purchased) and are on an "as is" basis.
    • 14.2 Nothing in this agreement excludes the liability of TCS:
      • (a) for death or personal injury caused by TCS's negligence; or
      • (b) for fraud or fraudulent misrepresentation.
    • 14.3 Subject to clause 1 and clause 14.2:
      • (a) TCS shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution 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) TCS's total aggregate liability in contract (including in respect of the indemnity at clause 2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose and if Subscription Fees have not been paid and the free to use version of the Portal has been used, then TCS liability shall be £0 to reflect that fact that the Customer has been using the Portal for free.
    • 14.4 This clause 14 shall survive termination of the Contract.
15. Term and termination
    • 15.1 Subject to clause 15.3, for the free to use version of the Portal, the Customer shall be granted access to the Portal until TCS provides 30 days' notice to the Customer of its intention to remove access to the Portal. TCS shall, where possible, provide further limited access for up to 15 days thereafter to allow the Customer to remove any data that they wish to retain and after such period shall be destroyed/erased. This may also occur where the Customer has been inactive on the Portal for 6 months or more.
    • 15.2 Ad-Free access shall, unless otherwise terminated as provided in this clause 15, 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:
      • (a) either party notifies the other party of termination, in writing, at least 60 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
      • (b) 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.

• 15.3 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:
  • (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 60 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 60 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 14.2(d) to clause 14.2(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;
  • (m) there is a Change of Control of the Customer; or
  • (n) any warranty given by TCS in clause 4 of this agreement is found to be untrue or misleading.
• 15.4 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 and/or the Documentation;
  • (b) 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;
  • (c) TCS may destroy or otherwise dispose of any of the Customer Data on the Portal after the period set out in clause 15.1; and
  • (d) 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.
16. Force majeure

TCS 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 TCS 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 TCSs or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

17. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

18. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. Waiver

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.

20. 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.

21. Severance
    • 21.1 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.
    • 21.2 If any provision or part-provision of this agreement is deemed deleted under clause 1 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.
22. Entire agreement
    • 22.1 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.
    • 22.2 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.
    • 22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • 22.4 Nothing in this clause shall limit or exclude any liability for fraud.
23. Assignment
    • 23.1 The Customer shall not, without the prior written consent of TCS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    • 23.2 TCS 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.
24. 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).

25. 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 Third Parties) Act 1999.

26. Notices
    • 26.1 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 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, or sent by fax to the other party's fax number as set out in this agreement.
    • 26.2 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 shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. 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).
27. 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 and Wales.

28. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales 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).