Terms & Conditions
PLEASE READ CAREFULLY BEFORE ACCESSING ANY SERVICES FROM CONJURA:
The following provisions (including any Annex and/or Schedule) set out the terms and conditions (the “T&Cs”) under which our Services (as defined below) will be provided to the Customer (as defined below).
We licence use of the Platform (as defined below) to you on the basis of the Agreement (as defined below). We do not sell the Platform to you. We remain the owners of the Platform at all times.
IMPORTANT NOTICE TO ALL CUSTOMERS / USERS:
You should print a copy of these T&Cs for future reference.
2.1 Definitions – In these T&Cs, except to the extent expressly provided otherwise, the following words and expressions have the meanings given to them below, in addition to those terms defined in any Order Form:
“Affiliate” – means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Aggregated Data” – means the anonymised analytics data relating to the use of the Platform by the Customer and resulting from the aggregation of the Customer Data that Conjura ingests from the connected and authorised Customer systems;
“Agreement” – means the Customer’s acceptance of these T&Cs or the Customer’s Order Form(s) and Conjura’s acceptance of it/them (as applicable under Clause 4).
“Business Day” – means a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
“Confidential Information”– means the existence and contents of the Agreement and all non-public information relating to Conjura or the Customer, documentation, technical information, software, business information, feedback, pricing, reports, trade secrets or know-how or other materials of a confidential nature disclosed by one party to the other and in connection with the Agreement, whether or not marked as confidential.
“Conjura“, “we”, “us” or “our” – means Conjura Ireland Limited is a limited liability company registered in Ireland with the registration number 572252 and the registered office at RBK House, Irishtown Central, Athlone, Co. Westmeath, N37XP52.
“Conjura Background IPR” – means any IPR owned by or licensed to Conjura prior to the Subscription Start Date and any enhancements or developments thereto.
“Conjura Parties” means Conjura, its agents, advisers, consultants, contractors, subcontractors, their respective Affiliates and any employee, worker or other personnel (temporary or permanent), officer, director or partner of any of them.
“Customer Data” – has the meaning given in Annex A to these T&Cs.
“Customer”, “you” or “your”– means the entity:
(a) accepting these T&Cs in accordance with Clause 4.1; or
(b) set out as the Customer on the relevant Order Form,
as applicable.
“Documentation” – means any specifications, manuals, instructions or written materials describing the Platform provided to the Customer by Conjura.
“Equipment” – has the meaning given in Clause 5.3.2.
“Fees” – means the following amounts, as set out on the Conjura website or in the relevant Order Form(s) (as applicable), being the fees payable by the Customer to Conjura for the Services:
(a) the Subscription Fee; and
(b) such amounts as may be agreed in writing between the parties from time to time.
“Force Majeure Event” – has the meaning given in Clause 19.1.
“Heightened Cybersecurity Requirements” – means any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Customer relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148) and the Commission Implementing Regulation ((EU) 2018/151) as amended or updated from time to time.
“Initial Subscription Term” – has the meaning given in Clause 7.1.
“IPR” – means any patents, rights to inventions, copyright and related rights, moral rights, rights in computer software, rights in source code and object code, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), database rights, formulae, algorithms trade names, trade marks, service marks, rights in designs, rights in getup, goodwill and the right to sue for passing off, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order Form” – means an ordering document or online order entered into between Conjura and the Customer from time to time describing the Services to be provided by Conjura to the Customer under these T&Cs, any applicable Fees, estimated timetable (if any), responsibilities of each of the parties, each party’s contact details and any other relevant information for, or in connection with, the provision of the Services by Conjura in accordance with the Agreement.
“Platform” – means the cloud platform operated and made available by Conjura to the Customer online via the applicable customer logins, as ordered by the Customer through the Customer’s acceptance of these T&Cs and/or under an Order Form.
“Services” – means any services that Conjura provides to the Customer, or has an obligation to provide to the Customer, under the Agreement and/or pursuant to an Order Form, which shall include but not be limited to the grant of access to and right to use the Platform.
“Subscription Fee” – means the annual fee payable by the Customer to Conjura on the Subscription Start Date (or on such other date as set out in the Order Form) in relation to the provision of any Services supplied during the Subscription Term (and “Subscription Fees” shall be construed accordingly).
“Subscription Start Date” – means the date of acceptance by the Customer of these T&Cs or such other date as set out in the Order Form, on which the licence for the use of the Platform by the Customer commences.
“Subscription Term” – has the meaning given in Clause 7.1.
“Trial Services” – means any Conjura product, service or functionality that may be made available by Conjura to the Customer to try at the Customer’s option, and which is designated by Conjura as “beta”, “trial”, “pilot”, “non-production”, “evaluation”, or by a similar designation.
“Third Party IPR” – means all rights including IPR in third party software licensed by either party, documentation and materials owned by any person or entity other than Conjura or the Customer (and shall include any open source software licensed under terms which require as a condition of the use, modification, or distribution of such software that other software incorporated into, derived from, or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed under terms that permit copying or sublicensing such software or making derivative works without compensation or payment to the licensor; and (iii) be redistributable at no charge to subsequent licensees).
2.2 Rules of interpretation – In these T&Cs:
2.2.1 Clause, schedule, annex and paragraph headings shall not affect the interpretation of these T&Cs.
2.2.2 The schedules and annexures form part of the Agreement and shall have effect as if set out in full in the body of these T&Cs.
2.2.3 References to Clauses, Annex and Schedules are to the Clauses, Annexes and Schedules of these T&Cs; references to paragraphs are to paragraphs of the relevant Schedules and Annexes to these T&Cs.
2.2.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.2.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.2.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.2.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.2.8 The Agreement shall be binding on, and endure to the benefit of, only the parties to the Agreement and their respective personal representatives (including officers and employees), successors and permitted assigns, and references to any party shall include that party’s personal representatives (including officers and employees), successors and permitted assigns.
2.2.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.2.10 A reference to writing or written includes email but not faxes.
2.2.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.2.12 A reference to the Agreement or to any other agreement or document referred to in the Agreement is a reference of the Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Agreement) from time to time.
2.2.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3.1 These T&Cs shall:
3.1.1 apply to and be incorporated in the Agreement; and
3.1.2 prevail over any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
3.2 Order of Precedence – In the event of any inconsistency between the terms of these T&Cs and any Order Form, the following order of precedence shall apply between Conjura and the Customer for the purposes of the Agreement:
3.2.1 any Order Form; and
3.2.2 these T&Cs.
3.3 No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding on Conjura unless in writing and signed by a duly authorised representative of Conjura.
4.1 In circumstances where the Customer places an order for Services and accepts to be bound by these T&Cs by clicking on the “Create Account” button on the Conjura website signup page, such acceptance shall establish an agreement between Conjura and the Customer for the supply and purchase of Services on these T&Cs.
4.2 Where the Customer signs an Order Form, Clause 4.1 shall not apply and the Customer’s Order Form constitutes an offer by the Customer to purchase the Services specified in it on these T&Cs. Accordingly, the execution and return of the acknowledgement copy of the Order Form by Conjura, or Conjura’s commencement or execution of any work pursuant to the Order Form, shall establish an agreement for the supply and purchase of those Services on these T&Cs. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order Form shall not govern the Agreement.
4.3 The Customer and its Affiliates may place further orders for Services under the Agreement by submitting separate Order Forms.
5.1 Subject to payment by you of any applicable Fees, the restrictions set out in this Clause 5, Clause 6 and the other provisions of these T&Cs, Conjura:
5.1.1 shall provide you with the Platform; and
5.1.2 hereby grants you a non-exclusive, limited, revocable, non-sublicensable, non-transferable, worldwide, royalty-free license to access and use the Platform during the Subscription Term solely for the Customer’s business operations.
5.2 To the extent that your use of the Platform requires the use of any third party terms and conditions, you will be required to accept these as a condition of your use of the Platform. Conjura shall use commercially reasonable endeavours to notify you of any such terms and conditions upon the commencement of the Agreement. If such terms and conditions are applicable, you must agree to them prior to accessing or using the Platform.
5.3 You shall:
5.3.1 access and use the Platform in accordance with all applicable laws and any policies communicated to you by Conjura;
5.3.2 obtain and maintain any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Equipment”);
5.3.3 maintain the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and be responsible for all uses of your account or the Equipment with or without your knowledge or consent; and
5.3.4 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Conjura.
5.4 Conjura may monitor your use of the Platform to ensure compliance with the terms of the Agreement.
5.5 Conjura may, in its absolute discretion, update or vary the content or functionality of the Platform at any time during the Subscription Term, such changes will not impact the level of service/fees as defined in the Agreement. If it does so, Conjura shall use commercially reasonable endeavours to update any applicable Documentation.
5.6 Conjura shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week except for:
5.6.1 Planned maintenance carried out during maintenance windows communicated to you in advance; and
5.6.2 Unscheduled maintenance, provided that Conjura has used reasonable endeavours to give you at least 6 hours’ notice in advance
5.7 Conjura Support Desk is available Monday – Friday 9am – 5pm (GMT) (excluding any public holidays/bank holidays in Ireland). Such support is to address issues that the Customer is experiencing. The Customer can contact their Conjura relationship manager via email detailing the issue. Acknowledgement of the issue will be made by Conjura to the Customer within 1 working day of receipt of email notification. Conjura will then revert with estimated timelines to fix issue following initial inspection.
5.8 Trial Services – If the Customer registers or accepts an invitation for Trial Services, including through Conjura’s website, or executes an Order Form for the same, Conjura will make such Trial Services available to the Customer on a trial basis until the earlier of and as applicable:
5.8.1 the end of the trial period for which the Customer registered to use the applicable Trial Services; or
5.8.2 the end date specified in the applicable Order Form.
Trial Services are provided for evaluation purposes and not for production use. Trial Services may contain bugs or errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED ON AN “AS IS” BASIS WITH NO EXPRESS OR IMPLIED WARRANTY FROM CONJURA. Conjura may, in its sole discretion, discontinue Trial Services at any time.
5.9 The Agreement shall not prevent Conjura 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 the Agreement.
6.1 You shall not, directly or indirectly:
6.1.1 (except to the extent permitted by applicable law which cannot be excluded by agreement of the parties) reverse engineer, decompile, disassemble or otherwise attempt to reduce to human-perceivable form of or discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform;
6.1.2 copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means (except to the extent expressly permitted by Conjura or the Agreement);
6.1.3 conduct or request that any other person conduct any load testing or penetration testing on the Platform;
6.1.4 use the Platform for timesharing or service bureau purposes or otherwise for the benefit of any third party;
6.1.5 remove any proprietary notices or labels from the Platform;
6.1.6 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party, save with the written consent of Conjura;
6.1.7 access all or any part of the Platform in order to build a product or service which competes with the Platform;
6.1.8 allow any part of the Platform to become the subject of any charge, lien or encumbrance;
6.1.9 use the Platform in connection with any unlawful, discriminatory, harmful, defamatory, obscene, offensive or otherwise illegal activity;
6.1.10 access, store, distribute or transmit any virus, malware, ransomware or other malicious or harmful code into Conjura’s network and information systems in connection with your use of the Platform;
6.1.11 use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform; or
6.1.12 collect or harvest any information or data from the Platform or Conjura’s systems or attempt to decipher any transmissions to or from the servers running the Platform.
6.2 Conjura 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 6 and/or Clause 5.
6.3 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Subscription Term.
6.4 Conjura may suspend the provision of the Services if any amount due to be paid by the Customer to Conjura under the Agreement is overdue, and Conjura has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
6.5 If you create any derivative works of the Platform despite the prohibition in Clause 6.1, you agree that these will belong solely to Conjura and, promptly on request by Conjura, you will, in consideration of the sum of €1 (one euro), assign all right, title and interest in the derivative works to Conjura (or its nominee).
7.1 The Agreement shall, unless otherwise terminated as provided in these T&Cs, commence on the Subscription Start Date and shall continue for a period of twelve (12) months (“Initial Subscription Term”), and thereafter the Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
7.1.1 at least 30 days prior to the commencement of next Renewal Period, the Customer notifies Conjura of termination, in which case the Agreement shall terminate upon the expiry of the then current Subscription Term; or
7.1.2 otherwise terminated in accordance with the provisions of these T&Cs,
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
7.2 Platform upgrades that upgrade an existing Platform are automatically included in all future renewals of the Agreement.
8.1 Subject to Clause 18, Conjura shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Platform in accordance with these T&Cs infringes any IPR, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that you give Conjura:
8.1.1 prompt notice of any such claim;
8.1.2 control of the conduct of related settlement discussions and legal proceedings, including the right and sole authority to investigate, settle and / or defend such claims, provided such conduct does not adversely impact the goodwill or reputation of the Customer; and
8.1.3 reasonable cooperation as requested by Conjura.
8.2 If your use of the Platform is, or in Conjura’s opinion is likely to be, the subject of an IPR infringement or misappropriation claim, or if required by settlement, Conjura may, in its sole discretion and expense:
8.2.1 substitute for the Platform substantially functionally similar non-infringing software or services;
8.2.2 procure for you the right to continue using the Platform; or
8.2.3 terminate the Agreement, accept return of the Platform (if applicable) and provide a refund of any prepaid Subscription Fees for the unused remainder of the then-current Subscription Term, without any additional liability or obligation to pay liquidated damages or other additional costs to you.
8.3 Conjura (and the Conjura Parties) shall have no liability with respect to IPR infringement or misappropriation arising out of:
8.3.1 modifications to the Platform made to your order or specification, or not made by Conjura or any party under its control;
8.3.2 your use of the Platform in combination with other software or equipment if such combination or other software or equipment gives rise to the infringement;
8.3.3 your failure to use any new or corrected versions of the Platform made available by Conjura;
8.3.4 your use of the Platform after notice of the alleged or actual infringement from Conjura or any appropriate authority; or
8.3.5 your use of the Platform in a manner not permitted by the Agreement.
8.4 Conjura 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 third party content which the Platform may enable or assist the Customer to access or engage with.
8.5 The foregoing and Clause 18 state the Customer’s sole and exclusive rights and remedies, and Conjura’s (including the Conjura Parties) entire obligations and liability, for infringement of any IPR.
8.6 Conjura warrants that it has the right to enter into the Agreement and to grant to the Customer a licence to use the Platform as contemplated by the Agreement.
8.7 Conjura does not warrant that:
8.7.1 the use of the Platform will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements;
8.7.2 it will be able to rectify all defects to the Platform, nor that any such defect which does not materially affect the Customer’s operations using the Platform will be corrected before the issue of the next new upgrade to the Platform; or
8.7.3 the Platform will integrate or operate or be compatible or fit to operate with any hardware items or software products other than with those that are identified in the Documentation as being compatible or fit to operate with the Platform.
8.8 The Customer accepts responsibility for the selection of the Platform to achieve its intended results and acknowledges that:
8.8.1 the Platform has not been developed to meet the individual requirements of the Customer, and has been designed to be compatible only with that software and those systems specified as compatible in the Documentation;
8.8.2 complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these T&Cs, Conjura gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs nor entirely secure; and
8.8.3 Conjura will not provide any legal, financial, accountancy or taxation advice under the Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in these T&Cs, Conjura does not warrant or represent that the Services or the use of the Platform by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
8.9 The Customer warrants and represents that:
8.9.1 it has not relied on the written or oral representations of Conjura, save as set out in the Documentation or an Order Form, when entering into the Agreement;
8.9.2 it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement; and
8.9.3 it will at all times comply with all applicable laws and regulations with respect to its activities under these T&Cs and in connection with any part of the Platform.
8.10 The Customer shall defend, indemnify and hold harmless Conjura 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 Platform, provided that:
8.10.1 the Customer is given prompt notice of any such claim;
8.10.2 Conjura provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
8.10.3 the Customer is given sole authority to defend or settle the claim.
8.11 All other conditions, representations, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.12 Each party acknowledges the importance of the goodwill, brand and reputation of the other. Each party undertakes not to do any act or make any omission that does or may have an adverse impact on the goodwill, brand or reputation of the other, subject to the right of any of them to take actions reasonably appropriate to enforce the Agreement and to exercise any right or remedy available under the applicable law.
9.1 Information – In order for us to provide the Services, you will make sure that:
9.1.1 any information given to us by you, or anyone else working with or for you, is:
(a) given promptly;
(b) accurate;
(c) complete; and
9.1.2 any assumptions are appropriate.
We will not verify any information given to us relating to the Services.
9.2 The Customer:
9.2.1 shall own all right, title and interest in and to all of the Customer Data that is not Personal Data;
9.2.2 is responsible for the reliability, integrity, accuracy, quality and legality of all Customer Data and the Customer’s use of such Customer Data with the Services; and
9.2.3 warrants and represents to Conjura that the Customer Data when used by Conjura in accordance with these T&Cs will not infringe the IPR or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
9.3 Customer Responsibilities – You shall:
9.3.1 co-operate with Conjura in all matters relating to our provision of the Services;
9.3.2 provide, for Conjura, its agents, subcontractors, consultants and employees access to your data (including Customer Data) and other facilities if such access is reasonably required by Conjura or any of them in order to provide the Services;
9.3.3 provide, in a timely manner, such input material and other information as Conjura may require, to ensure that the Services can be provided in accordance with the relevant Order Form;
9.3.4 without affecting your other obligations under the Agreement, comply with all applicable laws and regulations with respect to your activities under the Agreement;
9.3.5 carry out all other Customer responsibilities set out in these T&Cs in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, Conjura may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.3.6 comply with any additional responsibilities as set out in any Order Form;
9.3.7 obtain and shall maintain all necessary licences, consents, and permissions necessary for Conjura, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
9.3.8 ensure that your network and systems comply with the relevant specifications provided by Conjura from time to time;
9.3.9 be, to the extent permitted by law and except as otherwise expressly provided in any Order Form, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to Conjura’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and
9.3.10 be solely responsible for ensuring the Services meet your requirements.
9.4 Contribution – If our performance of our obligations under the Agreement is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, Conjura shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.
10.1 Payment – You shall pay to us the Fees in accordance with this Clause 10, the pricing structure set out on the Conjura website as applied to the Services for which you subscribe and the provisions of the applicable Order Form. Payment obligations are non-cancellable and, save in the circumstances set out in Clause 8.2.3, any Fees paid are non-refundable.
10.2 VAT – All Fees are quoted exclusive of VAT (and, where applicable, any other taxes applicable in the United States of America), which Conjura shall add to its invoices at the appropriate rate.
10.3 Payment of invoices – You shall pay each invoice submitted to you by Conjura, in full and in cleared funds, upon acceptance of these T&Cs or within the time period specified in the applicable Order Form (as applicable), to a bank account nominated in writing by Conjura. Time for payment shall be of the essence of the Agreement.
10.4 Failure to pay – Without prejudice to any other right or remedy that we may have, if you fail to pay Conjura on the due date:
10.4.1 Conjura may suspend all Services until payment has been made in full, and Conjura shall be under no obligation to provide any or all of the Services while the Fees concerned remain unpaid; and
10.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Conjura’s bankers from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5 Fees on Termination – All sums payable to Conjura under the Agreement shall, to the extent not already paid by the Customer, become due at the end of the next month after the month of its termination, despite any other provision in the Agreement. This Clause 10.5 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
10.6 Withholding – All amounts due under the Agreement shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Conjura may, without prejudice to any other rights it may have, set off any liability of the Customer to Conjura against any liability of Conjura to the Customer.
10.7 Taxes – You will pay any taxes, including VAT (and, where applicable, any other taxes applicable in the United States of America), that are due in relation to our Services. You will pay us the full amount of any invoice, regardless of any deduction that you are required by law to make.
10.8 Conjura may put in place receivables financing arrangements in relation to invoices raised or to be raised. In order to facilitate those arrangements, you hereby irrevocably consent to and authorise the assignment of any receivables paid or payable.
10.9 Conjura shall be entitled to increase the Fees at the start of each anniversary of the Subscription Start Date upon 30 days’ prior notice to the Customer and any current Order Forms shall be deemed to have been amended accordingly.
11.1 Change in law – Conjura may, from time to time and by written or oral notice to you, change the Services in order to comply with any applicable statutory requirement, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
11.2 Compliance obligation – In performing their respective obligations under the Agreement each party shall comply with all applicable laws, statutes, and regulations from time to time in force.
12.1 Confidentiality – Neither party may use or disclose any Confidential Information of the other party except as permitted by Clause 12.2.
12.2 Exceptions – A party may use or disclose the other party’s Confidential Information:
12.2.1 with the other party’s written consent or in order to give effect to, or obtain the benefit of, the Agreement;
12.2.2 if such disclosure is to its and its Affiliates’ employees, officers, representatives or advisers who need to know such information in connection with the Agreement, provided that the disclosing party shall ensure that any such discloses comply with this Clause 12;
12.2.3 if such Confidential Information is in the public domain, was already known to that party prior to entering into the Agreement, or received from a third party, in each case through no breach of the Agreement or other wrongful act by that party; and
12.2.4 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Marketing – The parties may disclose the existence of a commercial relationship between themselves for the purposes of marketing and publicity.
12.4 The above provisions of this Clause 12 shall survive termination of the Agreement, however arising.
13.1 Conjura Background IPR – All Conjura Background IPR are and shall remain the exclusive property of Conjura or, where applicable, the third party from whom Conjura’s right to use the Conjura Background IPR has derived.
13.2 Ownership of remaining IPR– In providing the Services, Conjura uses a range of proprietary IPR and licensed Third Party IPR. Save as otherwise set out in the Agreement all IPR in or arising out of or in connection with the Services (except for any Third Party IPR) shall be solely and exclusively owned by Conjura.
13.3 Use of Aggregated Data – Notwithstanding anything to the contrary in the Agreement but to the extent permitted by law, Conjura may:
13.3.1 collect, store and analyse Aggregated Data;
13.3.2 use such Aggregated Data for internal purposes to improve and enhance the Platform and for other development, diagnostic and corrective purposes; and
13.3.3 disclose such Aggregated Data to third parties solely in anonymised or other de-identified form in connection with its business. Please note we will only disclose data to third parties relative to industry sectors where we have multiple customers,
and Conjura shall be the owner of the Aggregated Data and of all IPR in or arising out of or in connection with the Aggregated Data and reserves the right to use, license, and sublicense the Aggregated Data.
The parties agree to be bound by the terms and conditions set out in Annex A to these T&Cs.
15.1 The Customer acknowledges and agrees that Conjura may share Customer Data with:
15.1.1 partners, including system implementers, resellers, value-added resellers, independent software vendors and developers that may help Conjura to provide the Customer with applications, products, services and information the Customer has requested or which Conjura believes is of interest to the Customer; and
15.1.2 other parties as set out in the Conjura privacy notice (available here https://conjura.com/privacy/ ),
In those circumstances, Conjura will take additional steps to protect Customer Data, including pseudonymisation, or anonymisation and aggregation prior to sharing the Customer Data, to protect the Customer’s privacy and the confidentiality of the Customer Data. Any sharing of Personal Data will be conducted in accordance with the terms of the Conjura privacy notice.
The Customer may provide Conjura with information about the Services’ use experience, including information pertaining to bugs, errors and malfunctions of the Services, performance of the Services, the Services’ compatibility and interoperability, and information or content concerning enhancements, changes or additions to the Services that the Customer request, desire or suggest (collectively, the “Feedback”). The Customer hereby assigns all right, title and interest in and to the Feedback to Conjura, including the right to make commercial use thereof, for any purpose Conjura deems appropriate.
Each party represents that it has validly entered into the Agreement and has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
18.1 Exceptions – Nothing in the Agreement shall limit or exclude Conjura’s potential liability for:
18.1.1 death or personal injury caused by its negligence;
18.1.2 fraud or fraudulent misrepresentation; or
18.1.3 any other liability which cannot be limited or excluded by applicable law.
18.2 Except as expressly and specifically provided in an Order Form:
18.2.1 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. Conjura shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Conjura by the Customer in connection with the Services, or any actions taken by Conjura at the Customer’s direction;
18.2.2 Conjura shall not be liable for any breach of the terms of the Agreement to the extent that such breach is a result of the Customer’s failure to comply with Clause 5.3 and/or Clause 6.1;
18.2.3 Conjura shall not be obliged to rectify any particular defect to the Services if attempts to rectify such defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of Conjura; and
18.2.4 the Platform and the Documentation are provided to the Customer on an “as is” basis and the sole remedy of the Customer for any defect or fault affecting the Services shall be correction of such defect or fault by Conjura within a reasonable time from notification by the Customer of such defect or fault.
18.3 Exclusions – Subject to Clauses 18.1 and 18.2, neither of the parties shall be liable to the other party, whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or any other head of liability, arising under or in connection with the Agreement for any:
18.3.1 loss of profits;
18.3.2 loss of sales or business;
18.3.3 loss of agreements or contracts;
18.3.4 loss of anticipated savings;
18.3.5 loss of or damage to goodwill;
18.3.6 loss of use or corruption of software, data or information;
18.3.7 pure economic loss; and/or
18.3.8 any special, indirect or consequential loss, costs, damages, charges or expenses.
18.4 Limitation of liability – Subject to Clauses 18.1 and 18.2, Conjura’s total liability to you, whether in contract (including in respect of the indemnity at Clause 8.1), tort (including negligence or breach of statutory duty), misrepresentation, restitution or any other head of liability, arising under or in connection with the Agreement, shall be limited to the total Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
18.5 No claims against individuals – Each party agrees to bring any claim (including one in negligence or breach of statutory duty) in connection with the Agreement only against the other party, and not against any individual.
18.6 Proportionality – If either party is liable to the other party under the Agreement, and another person would be liable in respect of the same loss (save for a party’s contractual arrangements with them), then:
18.6.1 the compensation payable by one party to the other party in respect of that loss will be reduced accordingly;
18.6.2 the reduction will take into account the extent of the responsibility of that other person for the loss; and
18.6.3 in determining the extent of the responsibility of that other person for the loss, no account will be taken of (a) any limit or exclusion placed on the amount that person will pay or (b) any shortfall in recovery from that person (for whatever reason).
18.7 Use of the Services – When providing the Services (including the processing of data (including Customer Data) and the provision of data analytic services), we are not responsible for any use that you put such data to. In particular, we disclaim all liability whatsoever for any decisions which you take (or fail to take) based on any data which we have processed or prepared on your behalf. We hereby specifically disclaim any and all liability for any decision which you take (or fail to take) based on the Services.
18.8 All dates supplied by Conjura for the delivery of the Services shall be treated as approximate only. Conjura shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
18.9 Nothing in the Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Conjura’s IPR.
18.10 All references to Conjura in this Clause 18 shall, for the purposes of this Clause 18 only, be treated as including all Conjura Parties, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Clause 18.
19.1 “Force Majeure Event” means an event beyond the reasonable control of a party (the “Affected Party”) which is not attributable to its fault or negligence, including, without limitation, acts of God, expropriation or confiscation of facilities, any form of government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, floods, fires, explosions, disasters, epidemic, pandemic or other catastrophes, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures and industrial disputes affecting any third party.
Force Majeure Event does not include:
19.1.1 strikes or other industrial action solely affecting employees of the Affected party or its subcontractors; or
19.1.2 any event affecting a subcontractor or supplier of the Affect Party, unless that event is itself a Force Majeure Event.
19.2 Neither party shall be responsible for any failure to carry out any of its duties under the Agreement to the extent that the failure is directly caused by a Force Majeure Event, provided that the Affected Party:
19.2.1 has taken all necessary steps to prevent and avoid the Force majeure Event;
19.2.2 carries out its duties to the best level reasonably achievable in the circumstances of the Force Majeure Event;
19.2.3 takes all necessary steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable, including actively managing any problems caused or contributed to by third parties and liaising with them;
19.2.4 on becoming aware of the Force Majeure Event, promptly notifies the other party (the “Unaffected Party”) that something has happened which is a Force Majeure Event, giving details of the Force Majeure Event, together with a reasonable estimate of the period during which the Force Majeure Event will continue; and
19.2.5 tells the Unaffected Party when the Force Majeure Event has stopped.
19.3 The Fees for the Services affected by a Force Majeure Event shall be reduced or waived by a reasonable amount to be agreed between the parties to reflect the extent and standard to which the affected Services are being provided during that period.
19.4 If a Force majeure Event prevents the Affected Party from materially complying with its obligations under the Agreement and it continues for more than 30 days, the Unaffected Party may terminate the Agreement with immediate effect by giving the Affected Party 30 days’ written notice.
20.1 Termination rights – Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving not less than thirty (30) days’ written notice to the other party if:
20.1.1 the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
20.1.2 the other party repeatedly breaches any of the terms of the 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 the Agreement;
20.1.3 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of the Companies Act 2014;
20.1.4 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 any of its creditors other than (being a company) 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;
20.1.5 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 (being a company) 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;
20.1.6 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 (being a company);
20.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
20.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other party;
20.1.9 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;
20.1.10 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 20.1; or
20.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
20.2 Termination at will – Without affecting any other right or remedy available to it, Conjura may terminate the Agreement on giving not less than 30 days’ written notice to the Customer.
20.3 Failure to pay – Without affecting any other right or remedy available to it, Conjura may terminate the Agreement with immediate effect by giving written notice to you if you fail to pay any amount due under the 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.
21.1 Automatic termination – The termination of the Agreement pursuant to Clause 20 or any other term of these T&Cs shall result in the automatic termination of all Services at the time of termination, and:
21.1.1 all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
21.1.2 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; and
21.1.3 the Customer shall immediately and permanently delete or remove the Platform from all computer equipment in its possession, and immediately destroy or return to Conjura (at Conjura’s option) all copies of the Platform then in its possession, custody or control and, in the case of destruction, certify to Conjura that it has done so.
21.2 Remedies – Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
21.3 Fees payable on termination – You agree to pay us for all Services we provide up to the date of termination. Where there is a fixed fee for the Services, you agree to pay us for the Services that we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee.
21.4 Deletion of Customer Data – In the event of termination of the Agreement, Conjura shall be entitled to arrange for the deletion of, and shall have no obligation to store nor maintain, any Customer Data which do not include Personal Data held by Conjura for and on behalf of the Customer. In the event of termination of the Agreement, any Personal Data held by Conjura for and on behalf of the Customer will be treated in accordance with and be subject to the provisions of paragraph 3.3.16 of Annex A to these T&Cs.
22.1 Mediation – If a dispute arises, the parties will attempt to resolve it by discussion, negotiation and mediation before commencing any legal proceedings.
22.2 Limitation period – Any claims by the Customer in relation to the Agreement must be brought no later than 2 years after the date the Customer should have been aware of the potential claim and, in any event, no later than 3 years after any alleged breach of the Agreement.
23.1 Method of service – Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by email or pre-paid registered post to the other party at such address or email address as may have been notified by that party for such purposes.
23.2 Deemed delivery – 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 registered 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 the sending of the email.
23.3 Legal proceedings – This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24.1 Entire agreement – The Agreement forms the entire agreement between the parties in relation to the Services. It replaces any earlier agreements, representations or discussions. No party is liable to the other party (whether for negligence or otherwise) for a representation that is not in the Agreement and upon which the parties confirm they have not relied.
24.2 Variation – Conjura may update these T&Cs at any time on notice by email to the Customer. The Customer’s continued use of the Services following receipt of the said email notice shall constitute the Customer’s acceptance to these T&Cs, as varied. If the Customer does not wish to accept these T&Cs (as varied) the Customer must immediately stop using and accessing the Services on receipt of the said email notice.
24.3 Waiver – A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
24.4 Rights and remedies – The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.5 Severance – If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Agreement.
24.6 Assignment – The Customer shall not, without the prior written consent of Conjura, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Conjura 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 the Agreement.
24.7 Third parties – Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24.8 No Partnership or Agency – Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in Clause 8.1. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24.9 Counterparts – The Agreement and any Order Form may be executed using an electronic signature and in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement/Order Form.
24.10 Survival – Any Clause that is expressly or impliedly intended to continue to apply after termination of the Agreement will do so including, but not limited to Clauses 1, 2, 12, 13, 18, and 20 to 24.
24.11 Law and jurisdiction – The Agreement and any dispute arising from it, whether contractual or non-contractual, will be governed by the laws of Ireland and any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be resolved by the exclusive jurisdiction of the courts of Ireland.
1.1 This Annex forms part of the Agreement between Conjura and the Customer in relation to Conjura’s provision of Services and the Platform.
1.2 To the extent that any inconsistency arises between the other terms of the Agreement and this Annex, the terms of this Annex shall prevail.
2.1 In this Annex, in addition to those definitions set out in the Agreement the following definitions shall apply:
“Applicable Data Protection Law” shall mean: (i) Data Protection Acts 1988 to 2018 (and any successor or replacement to that legislation in Ireland); (ii) the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (and any successor or replacement to that legislation in Ireland); (iii) the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016) (the “GDPR”) and any consequential national data protection legislation implementing or complementing the GDPR, together with and any enactment, statutory instrument, order, rule or regulation made thereunder; and (iv) any guidance and/or codes of practice issued by the Data Protection Commission of Ireland or other relevant Supervisory Authority, including without limitation the European Data Protection Board, in each case as amended, supplemented or replaced from time to time;
“Controller” has the meaning given to that term in Applicable Data Protection Law;
“Customer Data” means all data, ingestions, words, works and materials (which may include Personal Data):
(a) uploaded to or stored on the Platform by the Customer and/or Conjura on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;
(b) transmitted by the Platform at the instigation of the Customer; and/or
(c) generated by the Platform as a result of the use of the Services by the Customer,
but excluding the Aggregated Data;
“Data Protection Losses” means all liabilities, including all:
(a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and
(b) to the extent permitted by applicable law:
(i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
(ii) compensation which is ordered by a Supervisory Authority to be paid to a data subject; and
(iii) the reasonable costs of compliance with investigations by a Supervisory Authority;
“Personal Data” means personal data as defined in the Applicable Data Protection Law;
“Personal Data Breach” has the meaning given to that term in Applicable Data Protection Law;
“Processor” has the meaning given to that term in Applicable Data Protection Law; and
“Supervisory Authority” has the meaning given to that term in Applicable Data Protection Law.
3.1 The parties acknowledge and agree that each of them will comply with their respective obligations under Applicable Data Protection Law.
3.2 Without prejudice to paragraph 3.1, the Customer shall:
3.2.1 ensure that it has all necessary appropriate consents and notices in place to enable the lawful collection of the Personal Data by Conjura on behalf of the Customer for the duration and purposes of the Agreement;
3.2.2 take all actions necessary and appropriate to comply with applicable notification and lawful processing requirements relating to data subjects under Applicable Data Protection Law;
3.2.3 provide such information and such assistance to Conjura as Conjura may reasonably require, and within the timescales reasonably specified by Conjura, to allow Conjura to comply with its obligations under Applicable Data Protection Law; and
3.2.4 notify Conjura in writing without delay of any situation or envisaged development that shall in any way influence, change or limit the ability of Conjura to process personal data pursuant to the Agreement.
3.3 The parties agree as follows:
3.3.1 any Customer Data processed by Conjura under the Agreement shall be subject to the terms of this paragraph 3;
3.3.2 for the purposes of the Agreement, the parties agree that Conjura is a Processor whose business consists wholly or partly of processing the Customer Data on behalf of the Customer (and its Affiliates) and the Customer is a Controller who either alone, or with others, determines and controls the contents, use, purposes and means of processing the Customer Data;
3.3.3 Conjura shall only process the Customer Data on and subject to the documented instructions of the Customer for the purpose of providing the Services as described in the Agreement (including with regard to transfer of Personal Data to a third country or international organisation). In the event that a legal requirement prevents Conjura from complying with such instructions or requires Conjura to disclose the Personal Data to a third party Conjura shall, unless such legal requirement prohibits it from doing so, inform the Customer of the relevant legal requirement before carrying out the relevant processing activities;
3.3.4 Conjura shall take appropriate security, technical security and organisational measures that are in accordance with Applicable Data Protection Law, where applicable, against unauthorised access to, or unauthorised alteration, disclosure or destruction of the Customer Data, and against the accidental loss or destruction of Personal Data and against all other unlawful forms of processing;
3.3.5 Conjura shall take all reasonable steps to ensure that applicable persons employed by Conjura and other persons at the place of work of Conjura are aware of, and comply with, their obligation to keep Customer Data confidential;
3.3.6 The Customer will ensure that it complies with Applicable Data Protection Law in the instructions which it gives to Conjura;
3.3.7 Conjura agrees to cooperate with the Customer to provide reasonable access to relevant documentation as the Customer shall reasonably require in order to satisfy its obligations under Applicable Data Protection Law. Conjura reserves the right to charge the Customer a reasonable fee for such access if granting it would place an unreasonable burden on Conjura;
3.3.8 Conjura will make available to the Customer the information reasonably necessary to demonstrate compliance with the obligations in Article 28 of the GDPR. Conjura reserves the right to charge the Customer a reasonable fee for such information if compiling it would place an unreasonable burden on Conjura;
3.3.9 Conjura shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor authorised by the Customer provided always such inspections and/or audits shall be carried out on reasonable notice, at reasonable intervals and during normal business hours of Conjura and upon production of appropriate identity evidencing authority. The Customer undertakes to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of Conjura’s business and/or damage or injury to Conjura’s equipment, premises, personnel;
3.3.10 Conjura will provide reasonable assistance to the Customer in order to (i) assist the Customer in complying with its obligations in respect of data subject rights; (ii) respond to a Personal Data Breach; or (iii) allow the Customer to comply with its obligations under Articles 32 to 36 of the GDPR. Conjura reserves the right to charge the Customer a reasonable fee for such assistance;
3.3.11 Conjura shall notify the Customer within 48 hours of becoming aware of a Personal Data Breach;
3.3.12 Conjura shall provide reasonable assistance to the Customer (and at the Customer’s costs and expenses) with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities;
3.3.13 each party shall provide to the other, as soon as reasonably practicable, such information as is available to it in relation to the possession and processing of Personal Data, as well as its obligations hereunder as the other party may reasonably request in writing in order for the requesting party to comply with its obligations under Applicable Data Protection Law and to assess whether the storage and processing of that Personal Data in connection with the Agreement is breaching or may breach Applicable Data Protection Law;
3.3.14 nothing in the Agreement shall be constructed as preventing either party from taking such steps as are necessary to comply with Applicable Data Protection Law;
3.3.15 the Customer acknowledges and grants a general authorisation for Conjura’s use of sub-processors for the purposes of the Agreement. Conjura shall, where it engages any sub–processor for carrying out specific processing activities on behalf of the Customer, use reasonable endeavours to ensure that at least the same data protection obligations as set out in this Annex shall be imposed on that sub-processor by way of contract or other legal act under European Union law or the laws of a Member State. Conjura shall remain liable to the Customer for processing by such sub-processor as if the processing was being conducted by Conjura;
3.3.16 Conjura may process Personal Data which is provided to it for the purposes of providing the Services for the duration of the Agreement. After the termination of the Agreement, Conjura will, upon written request by the Customer made no later than sixty (60) days after the effective date of termination, return such Personal Data to the Customer. Following expiry of such period of sixty (60) days and in the absence of request from the Customer made pursuant to this paragraph, Conjura shall be entitled to arrange for the deletion of, and shall have no obligation to store nor maintain, any Personal Data which held by Conjura for and on behalf of the Customer. Nothing in this paragraph will prevent Conjura from retaining (i) Personal Data where it is required to do so by law, and (ii) Aggregated Data
3.3.17 the types of Personal Data which Conjura will process for and on behalf of the Customer include:
(a) Identity Data: first name, last name, username or similar identifier, title, and date of birth;
(b) Contact Data: billing address, email address, and telephone numbers;
(c) Financial Data: bank account and payment card details;
(d) Access Data: username, login, and password details and other third-party services (including, but not limited to, Adwords, Facebook, Google Analytics, Shopify, Stripe, and such other accounts as may be required from time to time), provided by the Customer to Conjura as part of the Services;
(e) Transaction Data: details about payments to and from you and other details of services you have purchased from Conjura;
(f) Technical Data: internet protocol (IP) address, your login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices you use to access the Conjura website;
(g) Profile Data: your username and password, service purchases or orders made by you, your interests, preferences, feedback, and survey responses;
(h) Usage Data: information about how you use the Services;
(i) Marketing and Communications Data: your preferences in receiving marketing from us and our third parties and your communication preferences;
(j) Records of discussions with our customer support teams, including call recordings, when you share comments and opinions with us, ask us questions or make a complaint, including when you phone us, we will keep a record of this. This includes when you send us emails, letters, phone our support team or contact us through social media;
(k) End User / Customer IDs from web analytics platforms like Google Analytics. These IDs are numeric or alphanumeric IDs;
(l) End User / Customer IDs from Payment / CRM / E-commerce platforms. These IDs are numeric or alphanumeric IDs;
(m) End User / Customer names from Payment / CRM / E-commerce platforms;
(n) End User / Customer email addresses from Payment / CRM / E-commerce platforms;
(o) End User / Customer physical addresses from Payment / CRM / E-commerce platforms; and[HG3] [HG4] [HG5]
3.3.18 the parties agree that other types of Personal Data can be processed by Conjura, subject to prior agreement between the parties in writing.
3.4 The Customer represents, warrants and undertakes:
3.4.1 all Personal Data sourced by the Customer for use in connection with the Services, prior to such Personal Data being provided to or accessed by Conjura for the performance of the Services under the Agreement, shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, data subjects), with Applicable Data Protection Law;
3.4.2 that the Customer’s instructions to Conjura in connection with or arising out of the processing of the Customer Data on the Customer’s behalf are and will at all times be lawful and shall not contravene Applicable Data Protection Law;
3.4.3 that the processing of Customer Data by or on behalf of the Customer (up to and including the making available of the Customer Data to Conjura by whatever means and whether directly by the Customer or on or under its direction) has been and will continue at all times to be carried out in accordance with the relevant provisions of the Applicable Data Protection Law (and, where applicable, has been notified to the relevant authorities of the Member State where the Customer is established) and does not contravene the Applicable Data Protection Law;
3.4.4 that the processing, in accordance with and as contemplated by the Agreement will not contravene the Applicable Data Protection Law;
3.4.5 without limiting the generality of the foregoing, that the Customer has and will continue at all times to have in place all fair processing notices and (where applicable) consent mechanisms for data subjects sufficient to ensure that all processing of Customer Data by Conjura, in accordance with this Annex, that is contemplated by the Agreement, will be lawful and shall not contravene Applicable Data Protection Law;
3.4.6 that in any communication with data subjects or a Supervisory Authority in relation to the Agreement it will act in good faith and in such a way as not to misrepresent or call into disrepute Conjura or information furnished to it by Conjura, and wherever appropriate and legally permissible, consulting in advance with Conjura in relation to the same;
3.4.7 that it will respond to enquiries from data subjects and any Supervisory Authority concerning the processing of Personal Data by the Customer, unless the parties have agreed that Conjura will so respond, in which case the Customer will still respond to the extent reasonably possible and with the information reasonably available to it if Conjura is unwilling or unable to respond. Responses will be made within a reasonable time and in accordance with Applicable Data Protection Law; and
3.4.8 that it is satisfied that:
(a) Conjura’s processing operations are suitable for the purposes for which the Customer proposes to use the Services and engages Conjura to process Personal Data; and
(b) Conjura has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Applicable Data Protection Law.
3.5 The Customer acknowledges that regulatory and governmental authorities and/or courts in a jurisdiction may obtain access to Customer Data which may be held or processed in such a jurisdiction or accessed through automatic reporting, information exchange or otherwise in accordance with the laws and regulations applicable in such jurisdictions. The Customer mandates, authorises and instructs Conjura to disclose or make available Customer Data to such authorities or courts in such jurisdiction to the extent required by the laws and regulations applicable in such jurisdictions.
3.6 The Customer acknowledges that Conjura:
3.6.1 is reliant on the Customer for directions as to the extent to which Conjura is entitled to use and process the Personal Data; and
3.6.2 is under no duty to investigate the completeness, accuracy or sufficiency of any instructions received from the Customer, or any of the Personal Data received from the Customer,
Consequently, and without prejudice to any other provisions of the Agreement limiting Conjura’s liability to the Customer, Conjura shall not be liable for any Data Protection Losses and any breach of the Agreement and/or the Applicable Data Protection Law arising from any action or omission by Conjura, to the extent that such action or omission resulted from the Customer’s instructions, any breach of the Agreement by the Customer and/or the transactions contemplated by the Agreement.
3.7 Notwithstanding any other provision of the Agreement, the Customer will hold harmless, indemnify and keep indemnified Conjura against all losses, fines, damages, liabilities, legal fees, court costs and expenses, claims whatsoever and howsoever arising incurred or suffered by Conjura in connection with any breach of Applicable Data Protection Law and/or any breach of this Annex by the Customer. If any third party makes a claim against Conjura, or notifies an intention to make a claim against Conjura which will, or is reasonably likely to, give rise to an indemnity claim from Conjura against the Customer under this paragraph 3.7, Conjura shall:
3.7.1 give written notice of the claim against Conjura to the Customer as soon as reasonably practicable;
3.7.2 not make any admission of liability in relation to the claim against Conjura without the Customer’s prior written consent; and
3.7.3 at the Customer’s request, costs and expenses, where the Customer has requested to conduct the defence of the claim against Conjura, co-operate and assist to a reasonable extent with the Customer’s defence of the claim against Conjura.
3.8 Conjura shall be liable for Data Protection Losses (howsoever arising, whether in contract, tort (including negligence) or otherwise) under or in connection with the Agreement:
3.8.1 only to the extent caused by the processing of Personal Data under the Agreement and directly resulting from Conjura’s breach of any of its obligations under the Agreement; and
3.8.2 in no circumstances to the extent that any Data Protection Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of the Agreement by the Customer.
3.9 The parties agree that the Customer shall not be entitled to claim back from Conjura any part of any compensation paid by the Customer in respect of such damage to the extent that the Customer is liable to indemnify Conjura in accordance with paragraph 3.7.
3.10 These paragraphs 3.6 to 3.10 are intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to data subjects, notwithstanding any provisions under Applicable Data Protection Law to the contrary, except:
3.10.1 to the extent not permitted by applicable law (including Applicable Data Protection Law); and
3.10.2 that it does not affect the liability of either party to any data subject.
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