Datscha General Terms and Conditions v231117 (GTCs)

Datscha General Terms and Conditions v231117 (GTCs)

1 Definitions

Unless the context otherwise requires, the following terms have the following meanings.

Agreement: The agreement between the parties for the supply of Services in accordance with these GTCs. These General Terms and Conditions and the Order Form together constitute the “Agreement”.

Data: Shall mean any of the data, information and content supplied to Customer via the Service pursuant to this Agreement and includes data, information and content from Supplier as well as Third-Party Data.

End User: Shall mean those registered users identified by the Customer to access the Service.

Initial Period: Shall mean the period defined in the Order Form and starting from the Service Commencement Date.

IPR(s): Shall mean all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, rights to Data, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world

Order Form: the form containing the customer’s order for the Service.

Parties: Collectively refers to the Parties.

Party: Shall mean either of the two organisations that have signed the Order Form.

Permitted Use: the right for End Users to access, view and make use of the Service and/or such Data that is accessed via the Service, or any derivatives thereof, for their own internal business use in accordance with the terms and conditions set forth in the Agreement or as otherwise notified by the Supplier.

Service: The standard web service provided by Supplier to End Users via the internet. The scope of functionality, Data and other aspects of the Service is described on Suppliers website (“Website”), and may change from time to time by and at Supplier’s sole discretion.

Service Package: the agreed number of End Users, the parameters of the Service and the applicable price as identified in the Order Form.

Term: has the meaning in clause 13.3.

Third-Party Data: Information, data, content, and tool(s) which are supplied via the Service, but the IPRs in which are not owned by the Supplier but are licensed by a third party.

URL: website address from time to time of third party providers’ terms including: find/terms-and-conditions t-agency-conditional-licence/environment-agency- conditional-licence

User Data: Information and data that Customer enters into the Service (or which Supplier uploads on Customer’s behalf) when using the Service. This does not include any software, solution code, configurations, settings, Data or modification of Data, aggregated and/or anonymised versions of User Data or other IPRs developed by Supplier or Supplier’s third-party data providers.

2 Basis of contract

2.1 The Order Form initially constitutes an offer by the Customer to purchase the Services in accordance with these GTCs. The Order Form shall only be deemed to be accepted when the Supplier issues written acceptance of the Order Form at which point this Agreement shall come into existence on the Agreement Commencement Date specified in the Order Form.

2.2 Where the Order Form contains provisions in contradiction with these GTCs, the provisions in the Order Form shall prevail.

2.3 The Customer confirms that it is entering into this Agreement in the course of its business and not as a consumer.

3 Scope of supply

3.1 The Supplier shall provide Customer with the following, from the Service Commencement Date during the Term:

3.1.1 Access and right to use the Service in accordance with this Agreement and the scope of license defined below. The Customer’s right to use the Service is: limited to the number of named and registered End Users set forth in the Order Form; limited to the Service Package (functional modules and/or Data) set forth in the Order Form, and subject to the license fees set forth in the Order Form being paid in accordance with the Agreement.

3.1.2 Access to and right for Customer’s registered users to contact Supplier’s customer support Monday- Friday between 09:00 – 16:00 (Greenwich Mean Time).

3.2 Without prejudice to any of the Supplier’s other rights and remedies, the Supplier may, on 14 (fourteen) days’ notice, withhold the supply of the Service in the event that the Customer either fails to pay the licence fees by the relevant due date or if the Customer is otherwise in material breach of this Agreement. Supply of the Service will not recommence until such licence fees are paid or remedy breached.

3.3 The Customer is responsible for providing Supplier with the names and email addresses of the End Users to be registered. Supplier will provide the registered End Users with user IDs and initial passwords. Customer agrees that such IDs and passwords are personal to the respective registered End User and shall not be shared among registered End Users or with any unregistered



3.4 Customer must notify Supplier of a change in registered End User details within 30 days of change.

4 Additional End Users and Service Packages

4.1 The Customer may add End Users and Service Packages as follows:

4.1.1 Customer’s representative shall email Supplier’s Account Manager requesting the number of End Users and/or Service Packages to be added, the date they want to start their service and their email address(es);

4.1.2 Supplier will reply to Customer’s email request quoting a price for the additional End User(s) and/or Service Packages;

4.1.3 Customer will confirm final acceptance of terms via email;

4.1.4 Upon receiving final confirmation, Supplier will print out and append these emails to the Order Form and issue the usernames and passwords for any additional users.

4.2 If such additional End User subscriptions and/or Service Packages are purchased by the Customer part way through the Initial Period or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Period or then current Renewal Period (as applicable).

5 Licence

5.1 Supplier grants to Customer a temporary, non- exclusive, non-transferable, non-assignable, non- sublicensable, revocable, limited licence to access, view and make use of the Service and/or such Data in accordance with this Agreement and the Permitted Use for the number of End Users defined in the Order Form, for the term identified in the Order Form. This licence does not extend to any other Supplier, or third-party, products or services, or any use of the Data other than that as expressly outlined in the Agreement.

5.2 In consideration of the provision of the Service by Supplier to Customer, Customer will pay to Supplier the fees set forth in the Order Form.

5.3 Customer agrees that it will:

5.3.1 Only use the Service for the purpose set out in clause 5.1.

5.3.2 Not sell, transfer, sub-license, distribute (internally or externally), make available via internet, intranet, email or reports, commercially exploit or otherwise make available to, or use for the benefit of, any third party any of the Service or Data, except as may be expressly set out in this Agreement or otherwise notified by the Supplier.

5.3.3 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and save for internal business use, not copy, adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with the Service or Data or combine the same with other materials to create a modified service, blended index, or blended data without the prior written consent of Supplier or as otherwise permitted by law or this Agreement.

5.3.4 Not alter or remove any copyright notices or other notices indicating the proprietary ownership of any IPRs in the Service or Data, or any limitations of liability,

exclusions or disclaimers made by any licensor of Third Party Data.

5.3.5 Not allow any unauthorized users or third parties to use, access, view, or in other ways exploit the Service or Data or any derivatives thereof.

5.3.6 Not develop any other service, data, or computer software of whatsoever nature using any of the Data;

5.3.7 Inform its End Users about the terms in this clause, and ensure that the Customer and its End Users comply with any terms of use and/or acceptable use policies as appear on the Supplier’s Website from time to time;

5.3.8 Not use the Service or the Data in any way that causes, or may cause, damage to the Service, or the Data or impairment of the availability or accessibility of the Service or the Data, or any of the services on, or areas of, the Service or the Data;

5.3.9 Not use the Service or the Data (a) in any way that is unlawful, illegal, fraudulent or harmful, or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

5.4 The license granted under clause 5.1 will automatically expire on termination of this Agreement for any reason.

6 Modification of Service & Charges

6.1 The Service is dependent on the availability of data from, and certain restrictions imposed by, independent third-party data providers including without limitation those at the URL. While the Supplier has used reasonable endeavours to procure appropriate terms from such third party providers, the Customer acknowledges that the Supplier is not responsible for restrictions in or changes to the Service or the Data as a result of restrictions or changes by such third parties.

6.2 The Supplier reserves the right to:

6.2.1 make improvements, substitutions, modifications and to add or remove elements of the Data or the Service;

6.2.2 change these GTCs to reflect changes by third party providers; and

6.2.3 increase the Charges to reflect any increases passed on by third party data providers.

6.3 The Supplier shall use reasonable endeavours to notify the Customer of changes pursuant to clause 6.2 by placing a banner at the top of the Service indicating the nature of such changes.

6.4 Where changes proposed under clause 6.2.1 or 6.2.2 are not to the Customer’s material detriment, the Supplier may introduce such changes immediately. Otherwise, the Supplier may introduce such changes or any increase in the Charges under clause 6.2.3 14 days after notice under clause 6.3 unless the Customer gives notice in writing that it objects to such changes, in which case this Agreement shall, unless the Supplier agrees to revert to the original terms. terminate upon the expiry of the 14 day period

7 Limitations in Service and Data Accuracy

7.1 The Supplier shall use its reasonable endeavours to ensure availability of the Service is 24 *365. Supplier reserves the right however to temporarily decommission


the Service in order to perform system maintenance, which will, where reasonably practicably possible, be performed outside of standard normal office hours.

7.2 Customer acknowledges that as the Service and Data supplied to it by Supplier includes Data that is provided by third parties or is otherwise publicly available, Supplier is not able to control or verify the accuracy or completeness of such data. Accordingly whilst Supplier agrees to use reasonable skill and care in the collation of Data, Supplier:

7.2.1 makes no warranty or representation (whether express or implied) about the accuracy or fitness for any particular purpose of the Service and/or Data or that the provision of the Data will be uninterrupted, timely or secure; and

7.2.2 accepts no liability for any inaccuracy, incompleteness or other error in the Service and/or Data.

7.3 Customer agrees and acknowledges that the Service and/or Data are not intended to be used as the sole basis for any business decision, that the use of the Data is at the Customer’s own risk and, to the fullest extent permitted by applicable law, on an “as is” basis and that Customer will not use the Data as the sole basis for any business decision.

7.4 Supplier gives no warranty or indemnity to Customer about the accuracy or fitness for any particular purpose of the Service and/or Data and in particular accepts no liability for any inaccuracy, incompleteness, miscalculations or other error in the Service and/or Data caused for whatever reason. All other warranties, representations or terms of equivalent effect that might be implied by law to be given by Supplier are excluded to the extent permitted by law.

7.5 Customer acknowledges that the Data (and the indices therein) are neither appropriate nor authorised by Supplier or its licensors (as the case may be) for internal or external use as a benchmark for fund, portfolio or manager performance of any kind and Customer agrees that it shall not use the Data for such or similar purposes. Customer agrees that any such use by it would constitute a breach of this Agreement and an infringement of Supplier’s or its licensors’ (as the case may be) IPRs.

8 Liability

8.1 Nothing in the Agreement will:

8.1.1 limit or exclude the liability of a Party for death or personal injury resulting from negligence;

8.1.2 limit or exclude the liability of a Party for fraud or fraudulent misrepresentation by that party;

8.1.3 limit any liability of a Party in any way that is not permitted under applicable law; or

8.1.4 exclude any liability of a Party that may not be excluded under applicable law.

8.2 The limitations and exclusions of liability set out in this clause 8 and elsewhere in the Agreement:

8.2.1 are subject to clause 8.1;

8.2.2 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.

8.3 Except for a party’s obligation to pay any sums due under this Agreement and subject to any claim for breach of clause 10, neither party shall be liable whether in tort, contract, misrepresentation, restitution or otherwise for:

8.3.1 any loss of profits, income, revenue, use, production or anticipated savings;

8.3.2 any loss of business, contracts or commercial opportunities;

8.3.3 loss of or damage to goodwill or reputation;

8.3.4 loss or corruption of any data, database or software; or

8.3.5 any special, indirect or consequential loss or damage.

8.4 Except for a party’s obligation to pay any sums due under this Agreement and subject to any claim for breach of clause 10, neither party’s liability in relation to any event or series of related events will exceed the total amount paid and payable by the Customer to the Supplier under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.

9 Intellectual Property Rights

9.1 This Agreement does not transfer to Customer any title to any Intellectual Property Rights (IPRs) contained in the Service, Data, software, documentation or proprietary information delivered according to this Agreement.

9.2 All IPRs in the Service and Data remain vested in Supplier or, as the case may be, its licensors and to the extent that any rights in such materials and data vest in Customer by operation of law, Customer hereby assigns such rights to Supplier.

9.3 Customer acknowledges and agrees that it shall not acquire or claim any title to any of Supplier’s (or Supplier’s third-party providers’) IPRs.

9.4 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Service or Website, either during or after the continuance of this Agreement.

9.5 Customer shall retain all IPRs in the User Data that is entered into the Service/Website by Customer pursuant to the Agreement. The Customer grants to the Supplier a non-exclusive licence to store, copy and otherwise use the User Data for the purposes of operating the Website, providing the Service, generating and distributing the aggregated data (as outlined in clause 9.6), fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement. The Customer warrants to the Supplier that the User Data, and its use by the Supplier in accordance with the terms of the Agreement, will not (a) breach any laws, statutes, regulations or legally-binding codes (b) infringe any person’s IPRs or other legal rights, (c) include any Personal Data or (d) give rise to any cause of action against the Supplier or the Customer or any third party.

9.6 Notwithstanding section 9.5 above, Supplier has the right, without any fee or royalty to Customer, to anonymise, pseudonymise and/or aggregate User Data to create, generate, sell and distribute such aggregated


data, provided Supplier does not in any way disclose any particulars of details of User Data which can be identified by a third party as information, data or content referring to Customer or Customer’s business.

10 Warranties, Infringements and Indemnification

10.1 Customer warrants that it has the right to enter into this agreement and that the User Data does not infringe the IPRs of any third party in so doing.

10.2 Customer warrants that it will not make any misleading statements about any information or Data that Customer derives from the Service.

10.3 Customer shall at its own cost indemnify, defend and hold Supplier harmless from and against any claims, actions, and damages arising out of or connected to Customer’s breach of clauses 5.3, 7.5 and 10.1.

10.4 Supplier warrants that it has the right to enter into this Agreement with Customer and that it is not infringing the IPRs of any third party in so doing.

10.5 Subject to the limitations in clause 8 and this clause, Supplier shall at its own cost indemnify, defend and hold Customer harmless from and against any claims, actions, and damages it actually incurs arising out of claims for infringement of IPRs to the extent such claims allege that the Service provided hereunder, infringes upon any IPRs of any third party.

10.6 In the event that the Service is found to infringe the IPRs of a third party, Supplier shall have the rights to at its own expense to either (1) modify the Service to avoid the allegation of infringement, while at the same time maintaining to the highest extent possible compliance of the Service and the requirements of the Agreement, or (2) obtain for Customer at no cost to Customer a license to continue using and exploiting the Service in accordance with the Agreement, or (3) if none of the above are reasonably achievable for Supplier, cease delivery of the Service and reimburse Customer for all fees paid by Customer for the Service which relate to use of the Service not yet delivered by Supplier.

10.7 Each Party’s obligation to indemnify (the “Indemnifier”) the other (the “Indemnified”) shall be subject to:

10.7.1 the Indemnifier being given prompt notice of any such claim;

10.7.2 the Indemnified provides reasonable co-operation to the Indemnifier in the mitigation, defence and settlement of such claim, at the Indemnifier’s expense; and

10.7.3 the Indemnifier is given sole authority to defend or settle the claim.

11 Confidentiality

During the performance of the Service and for a period of three years thereafter, each Party undertakes not to disclose information to any third party regarding the other party’s activities that may be deemed business, product or professional secrets without the other Party’s consent. Information that the Party states to be confidential will always be deemed to be business or professional secrets. The duty of confidentiality does not include such information which a Party can prove has come to its knowledge other than through the Service, or which is generally known. Nor does the duty of

confidentiality apply where a Party is obligated under law to release the information.

12 Charges and Payment

12.1 Unless otherwise agreed all fees set forth in the Agreement shall mean Great Britain Pound (GBP), shall be invoiced annually in advance.

12.2 Customer shall pay invoices within 30 days from the invoice date (as set out on the invoice).

12.3 After expiry of the initial period of the Agreement (as described in the Order Form), Supplier shall be entitled, once per year, to amend all fees in accordance with changes in UK Retail Prices Index as most recently published at the relevant date.

12.4 All fees are exclusive of value added tax.

12.5 The Customer shall pay interest on any sum due under this agreement at 4% a year above the Bank of England’s base rate from time to time from when the overdue sum became due until it is paid.

13 Termination

13.1 The Supplier shall commence the Service from the Service Commencement Date.

13.2 If the Supplier has agreed to give the Customer a trial of the Service, the trial will automatically terminate at the end of the Trial Period unless:

13.2.1 the Supplier agrees in writing to extend the trial period for a further period as specified in Supplier’s notice;

13.2.2 the Parties agree that the Customer will continue using the Supplier’s Service on a paid-for basis in which case the Supplier will confirm the same in writing and this Agreement shall continue for the remainder of the Initial Period.

13.3 Subject to clause 13.2 or earlier termination in accordance with the GTCs, this Agreement shall stay in effect for the Initial Period specified in the Order Form and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months or such other period as specified in an Order Form (each a ”Renewal Period”), unless:

13.3.1 either party notifies the other party of termination, in writing, at least three (3) months before the end of the Initial Period or any Renewal Period (the “Termination Notification Date”), in which case this agreement shall terminate upon the expiry of the applicable Initial Period or Renewal Period; or

13.3.2 otherwise terminated in accordance with the provisions of this agreement;

and the Initial Period together with any subsequent Renewal Periods shall constitute the “Term”.

13.4 Termination or expiration of this Agreement shall not affect Supplier’s right to be paid for the Service supplied pursuant to and in accordance with this Agreement.

13.5 Without affecting any other right or remedy available to it, either Party shall have the right to terminate the Agreement if:

13.5.1 the other party materially breaches its obligations pursuant to this Agreement and such Party has not cured the breach or demonstrated that it has undertaken


measures to avoid a breach of Agreement within 30 days after written demand has been submitted to the breaching Party with reference to this clause;

13.5.2 the other party is placed into insolvent liquidation, enters into negotiations regarding a composition, or is otherwise insolvent;

13.6 Supplier may terminate this Agreement immediately on written notice if Supplier is unable to provide the Service(s) due to circumstances beyond Supplier’s reasonable control.

13.7 In this event, Supplier shall refund to Customer such advance fees paid by the Customer for access to the Service but which relate to future access not yet delivered by the Supplier as at the date of termination. Such refund will be pro-rated, calculated according to the term of the Agreement that is left to run as at the date of termination.

13.8 No refund of fees will be due to the Customer in the event of termination of this Agreement unless the Customer has terminated the Agreement pursuant to clause 6.4 or 13.5, or the Supplier has terminated pursuant to clause 13.6, in which case the Supplier shall refund the Customer for any remaining portion of the Term.

13.9 Upon termination of this Agreement (for whatever cause), Customer’s rights to use the Service and/or any Data will immediately cease.

13.10 The provisions of clauses 7, 8, 9, 10.1, 10.2, 10.3,10.7, 11, 12, 14, 21 shall survive termination of this Agreement and shall remain in full force and effect.

14 Data Protection

14.1 Both Parties agree to comply with respective obligations under all applicable data protection laws and regulations in force from time to time including the Data Protection Act 1998 (as amended or replaced) (altogether, the “DP Laws”). In particular, both Parties acknowledge that it may receive from the other Party (or from Supplier’s third-party data providers) information relating to a living individual who can be identified from that information (“Personal Data”). Accordingly, both Parties undertake to process any such information in accordance with the DP Laws and the terms of this Agreement (or otherwise by agreement between Parties from time).

14.2 Both Parties undertake not to disclose the Personal Data to a third party in any circumstances other than in accordance with the terms of this Agreement or as required by applicable law.

14.3 Both Parties agree to give the other Party assistance which may be reasonably required by the other in relation to all subject information requests that may be received from an individual who is the subject of Personal Data.

15 Audit

Customer shall allow Supplier or Supplier’s authorised representatives to audit the Services in order to calculate the number of End Users entitled to access the Service and that the End User and the Customer are using the Services in accordance with this Agreement. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with

reasonable prior notice, in such a manner (including remotely where practicable) as not to substantially interfere with the Customer’s normal conduct of business.

16 Force Majeure

Where a Party is prevented from fulfilling its obligations pursuant to this Agreement due to circumstances which are beyond the Party’s control such as but not limited to lightning, labour disputes, fire, amendments to regulations issued by governmental authorities, intervention by the authorities and due to circumstances as stated herein, such circumstances shall constitute an excuse which occasions a postponement of the time for performance and a release from liability in damages and any other penalties.

17 Notices

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 email. 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 email shall be deemed to have been received at the time of transmission either once confirmed by the receiving party or provided a copy was also sent by one of the other methods.

18 Assignment

Either Party may assign all of its rights or obligations under this Agreement only upon obtaining the consent of the other Party in writing, such consent not to be unreasonably withheld or delayed.

19 Anti-Bribery and Corruption

Each Party will maintain throughout the term of this Agreement its own policies and procedures, (including but not limited to, adequate procedures under the Bribery Act 2010) to ensure compliance with the Bribery Act 2010 and all other applicable laws, statutes and regulations relating to anti-bribery and anti-corruption.

20 Technology

Customer acknowledges that web pages in the Service may contain web beacons. Generally, web beacons allow a website to transfer or collect information through a graphic image request. Customer acknowledges that Supplier may use web beacons for its internal purposes including, but not limited to, data and website usage analytics and reports.

21 General

21.1 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).

21.2 This Agreement shall be governed by the law of England. Any dispute regarding the application or interpretation of this Agreement shall be resolved by arbitration in accordance with the English Law. The arbitration panel shall consist of one arbitrator. Arbitration proceedings shall take place in London and the language shall be English unless otherwise agreed by Parties.

21.3 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, 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

21.4 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.

21.5 No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.

21.6 Save where expressly stated otherwise in this Agreement, no variation to this Agreement shall be effective unless mutually agreed between the Parties in writing.