1.1 Agreement – This Subscription and Services Agreement (the “Agreement”) and any executed Order Forms between the parties, are incorporated herein and shall govern the provision of the Services. Customer and its Affiliates may place orders under this Agreement by submitting separate Order Forms.
1.2 Parties – The parties to the Agreement are Conjura and the entity set out as the Customer on the relevant Order Form.
2.1 Definitions – In this Agreement 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.
“Background IPR” – all algorithms, methods, processes, databases, norms, formulae, works, questionnaires and template questionnaires, systems, software and computer programs, including application software, platforms, enhancements, supporting documentation and materials and all other works or items, where the related IPR are owned by, or licensed to, Conjura prior to the commencement of this Agreement (as defined in clause 9.1), which are not created by Conjura solely for the Customer pursuant to this Agreement, excluding the Subscription.
“Confidential Information” – the existence and contents of this Agreement and all information provided by one party to the other in connection with this agreement, whether or not marked as confidential.
“Consulting Services Start Date” – means the date on which consulting services, as outlined in the relevant Services Order Form, commence.
“Consulting Services Completion Date” –means the expected date on which consulting services, as outlined in the relevant Services Order Form, are completed.
“Custom Solutions Start Date” – means the date on which the work to deliver a custom solution or custom solutions, as outlined in the relevant Services Order Form, commences.
“Custom Solutions Completion Date” – means the expected date on which the work to deliver a custom solution or custom solutions, as outlined in the relevant Services Order Form, is completed.
“Deliverables” – all documents, reports and materials developed by Conjura or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts), excluding the Subscription.
“Documentation” – means any specifications, manuals, instructions or written materials describing the Subscription provided to you by Conjura.
“Downtime” means, for a server, if there is a more than a five (5) percent user error rate. Downtime is measured based on server side error rate.
“Downtime Period” means, for a server, if a period of ten consecutive minutes of Downtime occurs. Intermittent Downtime for a period of less than ten minutes will not be counted towards any Downtime Periods.
“Fees” – the fees set out in the relevant Order Form.
“Trial Services” – means any Conjura product, service or functionality that may be made available by Conjura to Customer to try at Customer’s option, at no additional charge, and which is designated as “beta,” “trial,”, “pilot,” “non-production,” “evaluation,” or by a similar designation.
“Implementation Commencement Date” – means the date on which the implementation work to facilitate a Subscription commences, as set out in the Subscription Order Form.
“Implementation Completion Date” – means the expected date on which the implementation work to facilitate a Subscription is completed, as set out in the Subscription Order Form.
“IPR” – means intellectual property rights including but not limited to any patent, patent application, copyright (including copyright in software code), moral right, trade name, trade mark, service mark, trade secret, and any applications or right to apply for registration therefore, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first made or created before, on, or after the commencement of this Agreement (as defined in clause 9.1), which are not created by Conjura solely for the Customer pursuant to this Agreement, excluding the Subscription.
“Licence Term” – means the period set out in clause 5.1.
“Monthly Uptime Percentage” means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in the calendar month, divided by the total number of minutes in the calendar month.
“Order Form” – an ordering document or online order specifying the Services to be provided hereunder that is entered into between Conjura and Customer from time to time. Customer and its Affiliates may purchase Services subject to this Agreement by executing Order Forms hereunder. The term “Order Form” may refer to a Subscription Order Form or a Services Order Form.
“Subscription Order Form” – the order form which outlines the Subscription provided to the Customer.
“Services Order Form” – the order form which outlines the Professional Services provided to the Customer.
“Services” – the Subscription and Professional Services that Customer may purchase under an Order Form.
“Subscription” – the cloud platform made available by Conjura to Customer and/or the software made available by Conjura to Customer online via the applicable customer logins, as ordered by Customer under an Order Form.
“Professional Services” – fee-based data ingestion, implementation, training, consulting services or custom solutions that Conjura performs as described in an Order Form, but excluding Subscription Services.
“Subscription Start Date” – means the date on which the licence commences, as set out in the Subscription Order Form.
“Software” – means any software provided to you as part of the Subscription, whether in source code or object code form.
“Upgrade Go-Live Date” – means the date on which a Subscription upgrade is deemed completed and the upgrade is live, as set out in a Subscription Order Form which upgrades an existing Subscription.
“you” or “your” – the Customer recorded on the relevant Order Form.
“Conjura”, “we”, “us” or “our” – the Conjura Signing Entity as indicated via a checkbox on the relevant Order Form.
2.2 Order of Precedence – In the event of any inconsistency between the terms of this Agreement, the following order of precedence shall apply between the constituent documents of the Agreement:
2.3 Rules of interpretation – In this Agreement:
3.1 In accordance with the terms of the Agreement and the relevant signed Subscription Order Form, Conjura shall provide you with the Subscription.
3.2 Subject to payment of applicable Fees, Conjura hereby grants you a non-exclusive, limited, revocable, non-sublicensable, non-transferable, worldwide, royalty-free license to access and use the Subscription.
3.3 To the extent that your use of the Subscription requires the use of any third party terms and conditions, you may be required to accept these as a condition of your use of the Subscription. Conjura shall use commercially reasonable efforts to notify you of any such terms and conditions upon the commencement of this Agreement. If such terms and conditions are applicable, you must agree to them prior to accessing or using the Subscription.
3.4 You shall:
3.5 Conjura may monitor your use of the Subscription to ensure compliance with the terms of the Agreement.
3.6 Conjura may, in its absolute discretion, update or vary the content or functionality of the Subscription at any time during the term of this Agreement, such changes will not impact the level of service/fees as defined in this contract. If it does so, Conjura shall use commercially reasonable efforts to update any applicable Documentation.
3.7 Conjura shall use commercially reasonable endeavours to make the Subscription available 24 hours a day, seven days a week except for:
3.8 If the Monthly Uptime Percentage is below 98% for 3 out of 6 consecutive calendar months:
3.9 Clause 3.8 does not apply to any performance issues:
3.10 Conjura Issue Support is available Monday – Friday 9am – 5pm (GMT). This SLA 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.
3.11 Trial Services – If 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 Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Trial Services, or (b) 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 “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Conjura may, in its sole discretion, discontinue Trial Services at any time.
4.1 You shall not, directly or indirectly:
4.2 If you create any derivative works of the Software despite the prohibition in clause 4.1, you agree that these will belong solely to Conjura and, promptly on request by Conjura, you will, in consideration of €1 (one euro), assign all right, title and interest in the derivative works to Conjura (or its nominee).
5.1 The Subscription shall commence on the Subscription Start Date set out in the Subscription Order Form and continue for a period of twelve (12) months (“Licence Term”).
5.2 At the end of the initial Licence Term and each subsequent Licence Term, the Subscription shall automatically renew for an additional Licence Term unless either party gives notice of an intention not to renew no less than 30 days prior to the expiry of the relevant Licence Term.
5.3 Subscription upgrades as outlined in any Subscription Order Forms that upgrade an existing Subscription are automatically included in all future renewals of the Subscription unless either party gives notice of an intention not to include these upgrades in future renewals of the Subscription.
5.4 If a party gives notice that it does not intend to renew the Subscription under clause 5.2, this Licence Term shall expire at the end of the relevant Licence Term.
5.5 In addition to any other rights of termination provided for in this Agreement, Conjura may terminate the Subscription if you breach this Agreement and fail to rectify this breach within a 14-day period following the breach.
5.6 On the termination or expiry of the Subscription for any reason, you must destroy or return (at Conjura’s option) all copies of Software, Documentation or other materials relating to the Subscription in your possession. Historical data/visualisations that were provided during the contractual period with Conjura can be retained by the Customer.
6.1 Conjura shall indemnify you from and against all claims brought against you by third parties based upon a claim that the Subscription infringes such third party’s IPR, and shall pay all settlements entered into and damages awarded to the extent based on such claim or action, provided that you give Conjura:
6.2 If your use of the Subscription is, or in Conjura’s opinion is likely to be, the subject of an infringement or misappropriation claim, or if required by settlement, Conjura may, in its sole discretion and expense:
6.3 Conjura has no liability with respect to IPR infringement or misappropriation arising out of:
6.4 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 Subscription may enable or assist the Customer to access or engage with.
6.5 To the maximum extent permitted by law, all other warranties in relation to the Subscription, whether express or implied, are excluded.
7.1 You may not remove or export from the European Union or the United States, or allow any such export or re-export, of the Subscription, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States, EU or foreign agency or authority.
8.1 Professional Services – We will perform the Professional Services described in any Services Order Form with reasonable skill and care. You confirm that the scope of the Professional Services set out in the relevant Services Order Form is sufficient for your purposes.
8.2 Services Order Form – We shall use reasonable endeavours to provide the Professional Services in accordance with the relevant Services Order Form in all material respects.
8.3 Timeframes – We shall use reasonable endeavours to meet any performance dates specified in the relevant Services Order Form but any such dates shall be estimates only and time for performance by us shall not be of the essence of this Agreement.
8.4 Subcontractors – We may use subcontractors to provide the Professional Services. We remain solely responsible for the Professional Services.
9.1 Term – This Agreement shall commence on the date that the first Order Form becomes signed by both parties (i.e. the latter ‘Date Signed’ of the two signatures on the Order Form) and shall continue unless terminated in accordance with clause 19 below or expiry of the Agreement and all Order Forms.
10.1 Information – In order for us to provide the Services, you will make sure that (i) any information given to us by you, or anyone else working with or for you, is (a) given promptly, (b) accurate and (c) complete; and (ii) any assumptions are appropriate. We will not verify any information given to us relating to the Services.
10.2 Customer Responsibilities – You shall:
10.3 Contribution – If our performance of our obligations under this 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.
10.4 Non-solicitation – Neither Party shall, without the prior written consent of the other Party, at any time from the date of this Agreement to the expiry of 12 months after the termination or expiry of this Agreement, solicit or entice away from the other Party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other Party in connection with the provision of the Services.
11.1 Payment – You shall pay to us the Fees set out in the Order Form in respect of the Services. Payment obligations are non-cancellable and fees paid are non-refundable.
11.2 Calculation of fees – You agree and acknowledge that the Fees may reflect not only time spent, but also such factors as complexity, urgency, inherent risks, use of techniques, know-how and research together with the level of skills and expertise required of the personnel needed to perform and review the Services.
11.3 Basis of Service fees – Each Order Form shall specify whether the Fees shall be on a “time and materials” basis, hourly rates, fixed price or a combination of all of the above. Fees are based on Services purchased, regardless of usage.
11.4 Fixed price fees – Where the Services are provided for a fixed price:
11.5 VAT – All Fees are quoted exclusive of VAT, which Conjura shall add to its invoices at the appropriate rate.
11.6 Payment of invoices – You shall pay each invoice submitted to you by Conjura, in full and in cleared funds, within the time period specified in the applicable Order Form, to a bank account nominated in writing by Conjura.
11.7 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:
11.8 Fees on Termination – All sums payable to Conjura under this Agreement shall become due at the end of the next month after the month of its termination, despite any other provision in this Agreement. This clause 11.8 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
11.9 Withholding – All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11.10 Taxes – You will pay any taxes, including VAT, 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.
11.11 Conjura may put in place receivables financing arrangements in relation to invoices raised or to be raised under an Order Form. In order to facilitate those arrangements, you hereby irrevocably consent to and authorise the assignment of any receivables paid or payable under an Order Form.
12.1 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.
12.2 Changes – Either we or you may request a change to the Services or the Agreement (including by proposing an additional Order Form under clause 12.3). A change will be effective only when agreed in writing by the Parties.
12.3 New Order Forms – If the parties agree that Conjura will provide new Services to the Customer, they shall do so by agreeing a new Order Form under this Agreement.
13.1 Compliance obligation – In performing their respective obligations under this Agreement each party shall comply with all applicable laws, statutes, and regulations from time to time in force.
14.1 Confidentiality – Neither party may use or disclose any Confidential Information of the other party except as permitted by clause 14.2.
14.2 Exceptions – A party may use or disclose the other party’s Confidential Information:
14.3 Marketing – The parties may disclose the existence of a commercial relationship between themselves for the purposes of marketing and publicity.
15.1 Background IPR – The parties acknowledge and agree that each party owns and shall continue to own its respective Background IPR.
15.2 Background IPR licence – Each party hereby grants to the other party a non-exclusive, perpetual, non-sublicensable, non-transferable, worldwide, royalty-free licence to use any Background IP to the extent necessary for that other party to perform its obligations in relation to, or obtain the benefit of, the Services.
15.3 Deliverables – Conjura shall own the Deliverables as well as any IPR comprising the Deliverables (including, for the avoidance of doubt, any software code and any materials created by us in performing our obligations under this Agreement but excluding any of your Background IPR).
15.4 Deliverables licence – Subject to the payment in full of all Fees, Conjura hereby grants to you an exclusive, perpetual, non-sublicensable, non-transferable, worldwide, royalty-free licence to use the Deliverables for your internal business purposes only.
15.5 Software – In providing the Services and generating the Deliverables, Conjura uses a range of proprietary and licensed software, including the Subscription. Conjura expressly reserves all of its rights in such software (as well as any other IPR) and, except as set forth in clauses 3, 4, 5, 6, 7 and 15, nothing in this Agreement should be interpreted as an assignment of intellectual property by Conjura to you or any other party.
15.6 Use of data – Notwithstanding anything to the contrary in this Agreement but to the extent permitted by law, Conjura may:
16.1 Data protection – The parties agree to be bound by the terms and conditions set out in the Annex to these Terms.
17.1 General Representations – Each party represents that it has validly entered into this Agreement and has the legal powers to do so.
18.1 Exceptions – Nothing in this Agreement shall limit or exclude Conjura’s potential liability for:
18.2 Exclusions – Subject to clause 18.1, neither of the parties shall be liable to the other party, whether in contract, tort (including negligence) or any other head of liability, for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
18.3 Limitation of liability – Subject to clause 18.1, Conjura’s total liability to you, whether in contract, tort (including negligence) or any other head of liability, for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to €2.6million
18.4 No claims against individuals – Each party agrees to bring any claim (including one in negligence) in connection with the Services only against the other party, and not against any individual.
18.5 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 (i) the compensation payable by one party to the other party in respect of that loss will be reduced; (ii) the reduction will take into account the extent of the responsibility of that other person for the loss; and (iii) 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).
18.6 Use of the Services – where the Services include the processing of 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 or Deliverables 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 or the Deliverables.
19.1 Termination rights – Without affecting any other right or remedy available to it, either Party may terminate this Agreement by giving not less than thirty (30) days’ written notice to the other Party if:
19.2 Failure to pay – Without affecting any other right or remedy available to it, Conjura may terminate this Agreement with immediate effect by giving written notice to you if you fail to pay any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment.
20.1 Automatic termination – The termination of this Agreement pursuant to clause 19 shall result in the automatic termination of the Subscription and all Services at the time of termination.
20.2 Remedies – Termination or expiry of this 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.
20.3 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.
20.4 Return of data upon request – Upon request all data will be returned to the Customer, without undue delay or hesitation, in the event that Conjura ceases to trade, the termination of the Order Form or expiry of the Subscription.
21.1 Mediation – If a dispute arises, the Parties will attempt to resolve it by discussion, negotiation and mediation before commencing any legal proceedings.
21.2 Law and jurisdiction – The Agreement and any dispute arising from it, whether contractual or non-contractual, will be governed by the laws according to the table below:
|If the Conjura entity entering into this Agreement is:||Notices should be addressed to:||Governing law is:|
|Conjura Ltd.||14 Grays Inn Road
|Conjura Ireland Ltd.||Block 9/10
Belfield Office Park
Dublin D04 V2N9
21.3 Limitation period – Any claims by the Customer in relation to this 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 this Agreement.
22.1 Entire agreement – This 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.
22.2 Variation – Subject to clause 12, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
22.3 Waiver – A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
22.4 Rights and remedies – The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.5 Severance – If any provision or part-provision of this 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 this Agreement.
22.6 Assignment – No party may assign, transfer or deal with their rights or obligations under the Agreement without prior written consent of the other party.
22.7 Third parties – Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23.1 Method of service – Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by confirmed email to the email address set out in the Order Form. Where confirmed email is defined as “confirmation received from the receiving party that the email has been received”
23.2 Deemed delivery – Any notice shall be deemed to have been received at 9.00am on the next Business Day after transmission.
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.
23.4 Counterparts – This Agreement may be executed 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.
23.5 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, 10.4, 14, 18, 19, 20, 21 and 22.
1.1 This Annex forms part of the Agreement between Conjura and the Customer in relation to Conjura’s provision of Services and the Subscription.
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) the Irish Data Protection Acts 1988 and 2003 (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) on and with effect from 25 May 2018, 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; and (iv) any guidance and/or codes of practice issued by the Irish Data Protection Commissioner 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;
“Customer Data” means confidential information concerning the Customer or other third parties which is received by Conjura, in its capacity as a service provider to the Customer (which may include Personal Data);
“Personal Data” means personal data as defined in the 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 The parties agree as follows:
3.3 The Customer represents, warrants and undertakes:
3.4 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 access 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.
3.5 Conjura shall notify Customer within 24 hours of becoming aware of a Personal Data breach.
3.6 The parties agree to work together in good faith to complete the Data Protection Impact Assessment.