Datscha (UK) GTCs 20160419 FINAL 200716

 

Datscha General Terms and Conditions (GTC)

These General Terms and Conditions and the Main Agreement together constitute the “Agreement”. Where the Main Agreement contains provisions in contradiction with this General Terms and Conditions, the provisions in the Main Agreement shall prevail.

Definitions

Agreement
The Main Agreement, as signed by both Parties, and this General Terms and Conditions (GTC).

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 users identified by the Customer through the Main Agreement to access the Service.

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

Parties
Collectively refers to the Parties.

Party
Shall mean either of the two organisations that have signed the Main Agreement.

Permitted Use
Shall mean 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

Service
The standard web service (known as “Datscha”) 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 www.datscha.co.uk (“Website”), and may change from time to time by and at Supplier’s sole discretion.

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.

User Data
Information and data that Customer enters into the Service when using the Service. This does not include any software, solution code, configurations, settings, Data or modification of Data or other IPRs developed by Supplier or Supplier’s third-party data providers.

License
Supplier grants to Customer a temporary, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited license to use the Service for the Permitted Use in accordance with this Agreement and for the number of End Users defined in the Main Agreement, for the term identified in the Main Agreement. 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.

In consideration of the provision of the Service by Supplier to Customer, Customer will pay to Supplier the fees set forth in the Main Agreement.

Customer agrees that it will:

Only use the Service for the purpose set out in clause 2.1;

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

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.

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.

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.

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

Inform its End Users about the terms in this agreement, and procure that the End Users comply with the same from time to time;

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;

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.

The license granted under clause 2.1 will automatically expire on termination of this Agreement for any reason.

Modification of Service

The Supplier and the Service is dependent on the availability of data from independent third-party data providers. Accordingly, Supplier reserves the right to make improvements, substitutions, modifications and to add or remove elements of the Data. Customer acknowledges that Supplier shall not be liable to Customer or any third party for any modification, discontinuance or suspension of any of the Data in these circumstances.

Additionally, Supplier reserves the right, in its absolute discretion, as a result of circumstances beyond Suppliers control, to change this GTC by giving the Customer not less than 14 days prior written notice of the proposed amendments (the “Suppliers Notice”). In the event that the Customer does not agree to the amendments, it shall have the right to terminate this Agreement with immediate effect. In the event of such termination the Customer shall be entitled to a prompt refund of any fees which have been paid in advance and relate to the period after termination. Where the Customer does not exercise this option to terminate, amendments to the GTCs will be applicable from the date of the Suppliers Notice.

Limitations in Service and Data Accuracy

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.

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:

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

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

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.

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.

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) IPR’s.

Liability

Nothing in the Agreement will:
limit or exclude the liability of a Party for death or personal injury resulting from negligence;

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

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

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

The limitations and exclusions of liability set out in this clause 5 and elsewhere in the Agreement:
are subject to clause 5.1;

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.

Neither Party will be liable to the other in respect of any loss of profits, income, revenue, use, production or anticipated savings.

Neither Party will be liable to the other for any loss of business, contracts or commercial opportunities.

Neither Party will be liable to the other for any loss of or damage to goodwill or reputation.

The Supplier will not be liable in respect of any loss or corruption of any data, database or software.

Neither Party will be liable in respect of any special, indirect or consequential loss or damage.

Save in the case of Clauses 2.3, 6.4 and 7.4 of this Agreement, each Party’s liability in relation to any event or series of related events will not 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.

Intellectual Property Rights

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.

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.

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.

Customer shall retain all IPRs in the User Data that is entered into the Service/Website by Customer pursuant to the Agreement. Subject to Clause 8, the Customer grants to the Supplier a non-exclusive licence to store the User Data for the purposes of providing the Service to the Customer only. 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 or regulations b) infringe any person's IPRs or other legal rights, or (c) directly give rise to any cause of action against the Supplier.

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.

Warranties, Infringements and Indemnification

Customer warrants that it has the right to enter into this agreement.

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

Subject to the limitations in clause 5 and this clause 7, Supplier shall at its own cost indemnify, defend and hold Customer harmless from and against any claim, liability, costs, expenses, damages or losses 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 (“Claim”). Subject to clause 7.6, the Supplier further undertakes to indemnify Customer for any claim, liability, costs, expenses, damages or losses which Customer may be obligated to pay as a consequence of a settlement or judgment.

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 the 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.

If any third party makes a Claim against the Customer, and the Supplier is under an obligation to indemnify the Customer in respect of such Claim (including but not limited to (a) – (c) below) then the Customer shall:

a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
c) subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.

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.

Charges and Payment

Unless otherwise agreed all fees set forth in the Agreement shall mean Great Britain Pound (GBP).

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

After expiry of the initial period of the Agreement (as described in the Main Agreement), 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.

The Supplier reserves the right to increase the fees for the Service if it can demonstrate that the costs for third party Data has increased (the “Increased Costs”) by giving the Customer not less than 30 days prior written notice of the proposed increase together with supporting evidence of the Increased Costs (such notice herein referred to as an “Increased Costs Notice”). The Customer will have 15 days from the date of receipt of an Increased Costs Notice (the date of receipt of an Increased Costs Notice herein referred to as a “Notice Date”) to either accept or reject the increase in fees. If the Customer:
gives a written notice of objection to an Increased Costs Notice, then the Supplier will have 5 days after receipt of such notice of objection to elect to give the Customer a notice of withdrawal of the Increased Costs Notice (a “Withdrawal Notice”) and if the Supplier does not issue such Withdrawal Notice then:
this Agreement will automatically terminate on that day which is 30 days after the Notice Date (such termination date herein referred to as the “Determination Date”); and
the Supplier will reimburse the Customer for that portion of the fees paid hereunder in advance and which are attributable to that period of time between the Determination Date and the date to which Services have been paid to in advance (such amount to be determined pro-rata on a daily rate)
(it being understood and agreed that if a Withdrawal Notice is given by the Supplier, then the Increased Costs Notice will be treated as if it was not served)
gives a written notice of acceptance of the Increased Costs Notice, then it will pay that amount due pursuant to such Increased Costs Notice within 30 days of the Notice Date
(it being understood and agreed that if the Customer does not expressly object or accept an Increased Costs Notice pursuant to the foregoing, then it will be deemed to have accepted such Increased Costs Notice on that day which is the 16th day after the Notice Date).

No refund of fees will be due to the Customer in the event of termination of this Agreement unless it has terminated the Agreement pursuant to clause 3.2, 9.4 or 10.1, or the Supplier has terminated pursuant to clause 7.5, 10.1 or 10.2.

All fees are exclusive of value added tax

Termination

In addition to the termination rights detailed elsewhere in this Agreement (including within the Main Agreement), either Party shall have the right to terminate the Agreement if:
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;

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

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. 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.

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

The provisions of clauses 1, 4, 5, 6, 7.1, 7.2, 7.3, 8, 11, 12, 17 shall survive termination of this Agreement and shall remain in full force and effect.

Data Protection

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 (the “Act”). In particular, both Parties acknowledge that it may be receiving from the other Party 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 Act and the terms of this Agreement (or otherwise by agreement between Parties from time).

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.

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.

Both Parties warrant that they have appropriate operational and technological processes and procedures in place to safeguard against the unauthorised access, loss, destruction, theft, use or disclosure of Personal Data.

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.

Notices

Notices shall be given through letter, telefax or e-mail to the contact person of each party at the numbers/addresses stated in the Agreement or agreed upon (via email) after the Agreement enters into effect. Notices via email, fax, and letters shall be deemed to have been received by a party only if the receiving party has confirmed receiving such notice. Notices sent via registered mail shall be deemed to have been received by the receiving party 7 days after the sending party has sent such notice.

Assignment

Customer may not assign any of its rights or obligations under this Agreement without Supplier’s consent.

Supplier may assign any of its rights or obligations under this Agreement without Customer’s consent but subject to the Supplier notifying the Customer within 5 working days of any such assignment.

Anti-Bribery and Corruption

Customer 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.

For the purposes of clause 15.1 above, the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (any guidance issued in relation to the Bribery Act 2010).

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.

General

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).

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.

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

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

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

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