General Terms - Digital Barriers

These current consolidated General Terms were published on March 2023.

Definitions and interpretation
1.1 In the Agreement:
(a) each Purchase Order by the Customer shall form a separate agreement, incorporating these General Terms together with the SaaS Terms, Data Protection Addendum, and the Policies (the Agreement);(b) in the event of any conflict in respect of the provisions of the Agreement and/or the documents referred to in it the following order of priority shall prevail (in descending order of priority): (i) the PO; (ii) General Terms; (iii) SaaS Terms; (iv) the Data Protection Addendum; (vi) the Policies; and (vii) the Documentation; and(c) subject to the order of priority between documents in clause 1.1 (b), later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

1.2 In this Agreement:

Affiliate means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with, that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;

Applications means the software or applications used by or on behalf of Digital Barriers to provide the Subscribed Services;

Authorised Affiliates means, in respect of the relevant Subscribed Service, the Affiliates of the Customer (if any) identified in the Purchase Order as Authorised Affiliates in respect of that Subscribed Service;

Authorised Users means, in respect of the relevant Subscribed Service, the named users authorised by the Customer to use that Subscribed Service in accordance with the terms of the Agreement;

Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;

Subscribed Services Provided Materials means all of the Materials provided or made available by or on behalf of Digital Barriers, but excluding all Customer Data and all Non-Subscribe Services Materials;

Confidential Information means all information relating to Digital Barriers or the Customer and their respective Affiliates, suppliers, agents, customers and contractors, in any form or medium which is secret or otherwise not publicly available (either in its entirety or in part including the configuration or assembly of its components) including commercial, financial, marketing, or technical information, know-how, trade secrets, business methods and other information (including without limitation the content of the Agreement and, in respect of Digital Barrier’s Confidential Information, information in or relating to the Application (including for the avoidance of doubt, any developments or modifications to the Application)) in any form or medium whether disclosed orally or in writing or before or after the Order Acceptance, together with any reproductions of such information in any form or medium or any part(s) of such information;

Customer Data means all data (in any form) that is provided to Digital Barriers or uploaded or hosted on any part of any Subscribed Service by the Customer or by any Authorised User (but excluding Feedback as defined in clause 6.5);

Customer Systems means all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their direct or indirect sub-contractors, or any Authorised User in connection with the provision or receipt any of the Services or that the Services otherwise, link, inter-operate or interface with or utilise (in each case whether directly or indirectly);

Customer has the meaning given in the relevant Purchase Order;

Data Protection Addendum means the addendum identifying the certain respective rights and obligations of the parties in respect of personal data and privacy under our Agreement (as Updated from time to time), which as at Order Acceptance is the latest version available at https://digitalbarriers.com/data-privacy-addendum/;

Documentation means the applicable description of the relevant Subscribed Service (as Updated from time to time), which as at Order Acceptance is the latest version available (the Description); and in respect of each Subscribed Service, the relevant instructions as to how to use that part of the Services made available by Digital Barriers (as Updated from time to time) (the User Guides);

Fees means, in respect of each Subscribed Service, the fees payable by the Customer in consideration of that Subscribed Service as set out in the Order Form, together with any other amounts payable to Digital Barriers under the Agreement;

Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;

Free or Trial Service means any Subscribed Service identified as being provided on a trial basis or provided without charge (for the duration of the period during which it is provided on such basis);

Intellectual Property Rights all present and future rights conferred by statute, common law or equity in or in relation to copyright and related rights, moral rights, trade marks, rights in designs, patents, rights in databases, circuit layouts, business and domain names, image rights and rights of personality or privacy, rights in trade secrets and confidential information, rights in social media identifiers or similar, inventions and rights in goodwill or to sue for passing off or equivalent rights or forms of protection (whether or not registered or capable of registration) and all applications, rights to apply, renewals and extensions of any such rights, in each case as may now or in the future exist anywhere in the world;

Materials means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Digital Barriers in connection with the Services, but excluding all Customer Data;

Non-Digital Barriers Materials means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Non-Subscribed Services Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Subscribed Services Materials in the Agreement;

Open Source Software open-source software, public source software, shareware or freeware, or any modification or derivative of the same, including any version of any computer software licensed pursuant to any open source or general public licence;

Order Acceptance means the effective date of the relevant Purchase Order;

Purchase Order means the electric or physical form (including its schedules, annexes and appendices (if any)) ordering the Subscribed Services entered into by or on behalf of the Customer and Digital Barriers, incorporating these General Terms and the Agreement (and as varied by the parties by agreement in writing from time to time);

Permitted Downtime means scheduled maintenance which the Supplier shall use reasonable endeavours to undertake from 2am to 6am (UK time); emergency maintenance; or (c) downtime caused in whole or part by Force Majeure.

Permitted Purpose means use solely for the Customer’s internal business operations and, in respect of each Subscribed Service, also for the internal business of operations of the Authorised Affiliates identified in respect of that Subscribed Service on the Purchase Order, in each case in accordance with the applicable Documentation and the Agreement.

Policies means each of the following: (a) Digital Barriers’ policy on acceptable use of the Services (as Updated from time to time), which as at Order Acceptance is the latest version available at https://digitalbarriers.com/acceptable-use-policy/ (the Acceptable Use Policy); and (b) Digital Barriers’ privacy policy in relation to the Services (as Updated from time to time), which as at Order Acceptance is the latest version available at https://digitalbarriers.com/privacy-policy/ (the Privacy Policy);

Purchased Authorised User Accounts means, in respect of each Subscribed Service, the number of Authorised Users who may use that Subscribed Service as set out in the Purcahse Form;

Professional Services means the services to be provided in the Purchase Order and where the terms shall be agreed under a separate agreement;

SaaS Services means Subscribed Services Application as described in the Documentation, as updated from time to time;
SaaS Terms means the document detailing the provision of the SaaS Service and the obligations of the parties in respect of the SaaS Services as detailed in the Agreement (as Updated from time to time), which as at Order Acceptance is the latest version available at https://digitalbarriers.com/saas-terms/;

Service Hours means 24 hours a day, seven days a week excluding Permitted Downtime;

Service Period means the period beginning on Order Acceptance and ending with the last of the Subscribed Service Periods;

Services means the Subscribed Services, Professional Services and the Support Services;

Subscribed Service Period means (subject to clause 12) in respect of each Subscribed Service, the duration during which such services are to be provided as initially set out in the Purchase Order and as varied in accordance with the Agreement;

Subscribed Service Specific Terms means, in respect of each Subscribed Service, the specific additional or amended terms relevant to that Subscribed Service (as Updated from time to time) as per the relevant Purchase Order;

Subscribed Services means SaaS Service (including such Support Services) to which the Customer has subscribed as set out in the Purchase Order, or the Professional Services as detailed in the relevant Order Form (and Subscribed Service shall refer to each respective service separately);

Subscribed Territory means, in respect of the relevant Subscribed Service, the territories identified in the Purchase Order;

Support Services means, in respect of the relevant Subscribed Service, the support services provided by Digital Barriers to the Customer as described in the Documentation;

Update Notification has the meaning given in clause 2.1; and

Update has the meaning given in clause 2.2, and Updated shall be construed accordingly;

VAT means United Kingdom value added tax, any other tax, levies, or duties, by any jurisdiction, imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.

1.3 Any obligation on Digital Barriers under this Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with the applicable laws within the Subscribed Territory. Such obligations shall not be construed to create any obligation on Digital Barriers (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities.

1.4 In the Agreement, unless otherwise stated:

(a) the table of contents, background section and the clause, paragraph, schedule or other headings in the Agreement are included for convenience only and shall have no effect on interpretation;

(b) Digital Barriers and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;

(c) words in the singular include the plural and vice versa;

(d) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

(e) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and

(f) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation.
Changes to services and terms

2.1 Digital Barriers may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in clause 1.1 (b) or other documents referred to in any part of the Agreement (excluding in each case the Purchase Order) from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other reasonable means which Digital Barriers elects (Update Notification).

2.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of the Agreement from the date 30 days after the Update Notification of such revised document(s) (the Update) (or at such later date as Digital Barriers may specify).

2.3 The Customer acknowledges that Digital Barriers shall be entitled to modify the features and functionality of the Services. Digital Barriers shall use reasonable endeavours to ensure that any such modification does not materially degrade the relevant Subscribed Service(s) by Digital Barriers’ customers generally. Digital Barriers may, without limitation to the generality of this clause 2.3, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Service, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents.
Fees

3.1 The Fee and any other charges (including expenses) expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described in the Pricing Terms.

3.2 Digital Barriers shall invoice the Customer for the Fees, as are due under the Agreement, and the invoices shall be paid within 30 calendar days of the date on the invoice.

3.3 The Fees shall be paid by the Customer without withholding or deduction, of or in respect of any VAT when making such payment that the withholding or deduction may relate to. If any such withholding or deduction is required Digital Barriers shall be entitled to invoice the Customer such amount that it would have received if no such withholding or deduction had been required.

3.4 Digital Barriers shall have the right to charge interest on overdue invoices at the rate of four (4%) percent per year above the base rate of HSBC Bank Plc, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.

3.5 Digital Barriers shall be entitled to increase the Fees for any and all Services at any time by notice to the Customer provided that Digital Barriers shall not be entitled to increase the Fees on less than six weeks prior notice or more than once every 12 months.

3.6 To the extent the Agreement terminates or expires (other than due to termination by the Customer under clauses 4.4, 10.3 or 12.2) the Customer shall not be entitled to any refund or discount of Fees paid for any parts of any month during which the Services cease to be provided.

3.7 In the event that the Customer fails to pay the Fees in accordance with the Pricing Terms, Digital Barriers shall have the right to suspend the provision of Services, until the outstanding Fees have been paid in full. Digital Barriers will give the Customer at least ten (10) days’ notice prior to suspending the services.
Warranties

4.1 Subject to the remainder of this clause 4, Digital Barriers warrants that:

(a) each Subscribed Service shall operate materially in accordance with its Description when used in accordance with the Agreement under normal use and normal circumstances during the relevant Subscribed Service Period; and

(b) it shall provide each of the Services with reasonable care and skill.

4.2 The Customer acknowledges that clause 4.1 does not apply to Free or Trial Services or to Support Services provided in connection with the same. Without prejudice to the obligations of Digital Barriers under the Agreement in respect of Protected Data, Free or Trial Services and Support Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.

4.3 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Digital Barriers shall have no liability for any such delays, interruptions, errors or other problems.

4.4 If there is a breach of any warranty in clause 4.1 Digital Barriers shall, upon reasonable notice from the Customer, use reasonable endeavours to repair or replace the impacted Services within a reasonable time. Where Digital Barriers unable to correct the non-conformity then the Customer may terminate and seek a refund of the prepaid Fees for the impacted Services covering the remainder of the Subscribed Service Period. To the maximum extent permitted by law, this clause 4.4 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 4.1.

4.5 The warranties in clause 4.1 are subject to the limitations set out in clause 11 and shall not apply to the extent that any error in the Services arises as a result of: (a) incorrect operation or use of the Services by the Customer, any Authorised Affiliate or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications); (b) use of any of the Services other than for the purposes for which it is intended; (c) use of any Services with other software or services or on equipment with which it is incompatible (unless Digital Barriers recommended or required the use of that other software or service or equipment in the Documentation); (d) any act by any third party (including hacking or the introduction of any virus or malicious code); (e) any modification of Services (other than that undertaken by Digital Barriers or at its direction); or (f) any breach of the Agreement, including for the avoidance of doubt the Acceptable Use Policy, by the Customer (or by any Authorised Affiliate or Authorised User).

4.6 Digital Barriers may make Non-Digital Barriers Materials available for the Customer’s use in connection with the Services. It is agreed that Digital Barriers has no responsibility for the use or consequences of use of any Non-Digital Barriers Materials; and that the Customer’s use of any Non-Digital Barriers Materials shall be governed by the applicable terms between the Customer and the owner or licensor of the relevant Non-Digital Barriers Materials. The Customer shall be solely responsible for any Non-Digital Barriers Materials used in connection with the Services and for compliance with all applicable third party terms which may govern the use of such Non-Digital Barriers Materials. The continued availability, compatibility and performance of the Non-Digital Barriers Materials with the Services is outside the control of Digital Barriers and Digital Barriers has no responsibility for any unavailability of, or degradation in, the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Digital Barriers Materials;

4.7 The Customer acknowledges that no liability or obligation is accepted by Digital Barriers (howsoever arising whether under contract, tort, in negligence or otherwise) that the Subscribed Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Digital Barriers; that the operation of the Subscribed Services shall not be subject to minor errors or defects; or that the Subscribed Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in Documentation.

4.8 Other than as set out in this clause 4, and subject to clause 11.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
Customer’s responsibilities

5.1 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with:(a) all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.(b) promptly provide Digital Barriers with any information and data and provide such personnel assistance as Digital Barriers may reasonably require from time to time to enable Digital Barriers to carry out its obligations under the Agreement;

(c) provide Digital Barriers with remote and direct access to the Customer Systems as is necessary for Digital Barriers to carry out its obligations and exercise its rights under the Agreement;

(d) comply with (and not do anything which would cause Digital Barriers to breach) all applicable laws, statutes, regulations and codes in force from time to time and the Acceptable Use Policy;

(e) keep full and up to date back-up and security copies of the data processed through use of the Application; and

(f) comply with its obligations in the Agreement.
Intellectual property

6.1 All Intellectual Property Rights in and to the Services (including in all Applications, Documentation and all Digital Barriers Provided Materials) belong to and shall remain vested in Digital Barriers or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Applications, Documentation, Digital Barriers Provided Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Digital Barriers or such third party as Digital Barriers may elect. The Customer shall execute all such documents and do such things as Digital Barriers may consider necessary to give effect to this clause 6.1.

6.2 Digital Barriers has no obligation to deliver any copies of any software to the Customer in connection with the Agreement or the Services.

6.3 The Customer and Authorised Users may be able to store or transmit Customer Data using one or more Subscribed Service and the Subscribed Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Digital Barriers (and its Affiliates and each of its direct and indirect sub-contractors) to use, copy and utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Digital Barriers’ rights, remedies and obligations under the Agreement.

6.4 To the extent Non-Digital Barriers Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any Authorised User in connection with the use or provision of any Subscribed Service, such use of Non-Digital Barriers Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by Digital Barriers or the third party and not by the Agreement. Digital Barriers grants no Intellectual Property Rights or other rights in connection with any Non-Digital Barriers Materials.

6.5 Digital Barriers may use any feedback and suggestions for improvement relating to the Services provided by the Customer, the Authorised Affiliates or any Authorised User without charge or limitation (“Feedback”). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Digital Barriers at the time such Feedback is first provided to Digital Barriers.

6.6 The Customer hereby waives (and shall ensure all relevant third parties, including its personnel, have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Digital Barriers under the Agreement.

6.7 Except for the rights expressly granted in the Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.

6.8 This clause 6 shall survive the termination or expiry of the Agreement.
Confidentiality

7.1 Each party shall keep the Confidential Information of the other party strictly confidential and neither party shall disclose during or after the Service Period, without the other party’s prior written consent, any Confidential Information belonging to the other party except as permitted by Clause 7.2.

7.2 The restrictions in this clause shall not prevent the disclosure of Confidential Information:

(a) to the receiving party’s employees, officers, representatives, advisers, suppliers, consultants or sub-contractors who need to know such information for the purposes of carrying out the receiving party’s obligations or exercising its rights under this Agreement, subject to the receiving party ensuring that its employees, officers, representatives, advisers, suppliers, consultants or sub-contractors to whom it discloses the disclosing party’s Confidential Information are subject to an equivalent standard of obligations as set out in this clause. The receiving party shall procure that any such employee, officer, representative, adviser, supplier, consultant or sub-contractor complies with such obligations and the receiving party shall be responsible to the disclosing party in respect of any disclosure or use of the disclosing party’s Confidential Information by any such person to whom disclosure is made;

(b) in the event that the disclosing party has consented to such disclosure in writing;

(c) in the proper performance of the obligations of Digital Barriers under this Agreement;

(d) which is in, or has become part of, the public domain other than as a result of any breach of this Agreement;

(e) which was in its written records prior to the date when the parties commenced discussions with a view to entering into the
Agreement and was not subject to any existing confidentiality obligations;

(f) which was independently disclosed to it by a third party without breaching any obligation of confidence; or

(g) if required under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

7.3 Without prejudice to the rights of Digital Barriers in clause 6.5, neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights under or perform its obligations under this Contract.

7.4 This clause 7 shall survive the termination or expiry of the Agreement.
Customer Data

8.1 Digital Barriers shall in the event that the Customer Data provided includes personal data (as defined in the Data Protection Addendum), Digital Barriers shall comply with its obligations as detailed in the Data Protection Addendum.

8.2 The Customer agrees that in the provision of the Services that Digital Barriers may use and disclose in aggregate, anonymous Customer Data, for the purpose of compiling statistical and other performance based information in order to make service improvements to the Services.
Monitoring compliance

9.1 During the Service Period and for seven years thereafter the Customer shall maintain full and accurate records relating to Authorised Users’, the Customer’s and Authorised Affiliates’ use of the Services under the Agreement.

9.2 The Customer shall allow and procure for Digital Barriers (and any representatives of Digital Barriers) access to its premises and the premises of Authorised Affiliates to: (a) inspect use of the Services; and (b) audit (and take copies of) the relevant records of the Customer and the Authorised Affiliates, in each case to the extent necessary to verify that the Customer is in compliance with its obligations under the Agreement.

9.3 If having conducted an audit of the Customer’s use Digital Barriers identifies that the Customer has failed to comply with this Agreement, then the Customer shall take such actions as instructed by Digital Barriers to remedy the non-compliance immediately. The Customer shall be liable to pay Digital Barriers for the number of Authorised Users above the Purchased Authorised Users Accounts for the Subscribed Service during the relevant period during which infringement occurred. Such payment shall be calculated in accordance with the Order Form.

9.4 Unless otherwise agreed in writing, the audit referred to in clause 9.2 shall be carried out: (a) during the Customer’s normal business hours on Business Days;

(b) subject to the provision by Digital Barriers of a minimum of five Business Days’ notice; and

(c) not more than twice in any calendar year.

9.5 At Digital Barriers’ request from time to time the Customer shall promptly (and in any event within two Business Days of such request) provide Digital Barriers with copies of the records referred to in clause 9.1.

9.6 Digital Barriers may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or the operations of Digital Barriers and for the purposes of the further development and improvement of the services of Digital Barriers, provided that such activities at all times comply with the Privacy Policy and Data Protection Addendum.

9.7 The provisions of this Clause 9 shall not limit Digital Barriers right to monitor the usage and consumption of the Subscribed Services, by utilising internal monitoring tools are incorporated as part of the provision of the Services.

9.8 This clause 9 shall survive termination or expiry of the Agreement for a period of 12 months.
Indemnities

10.1 Digital Barriers shall defend and indemnify the Customer against any damages and costs awarded by a court and actually paid by the Customer, or agreed to in settlement by Digital Barriers, in respect of any claim or action that the possession or use of the Subscribed Services (other than Non-Digital Barriers Materials) by the Customer in accordance with the Agreement infringes the UK Intellectual Property Rights of a third party (an “IPR Claim”), provided that the Customer:(a) gives notice to Digital Barriers of an IPR Claim immediately upon becoming aware of the IPR Claim or potential IPR Claim;

(b) gives Digital Barriers the sole control and conduct of the defence and all related settlement negotiations in respect of an IPR Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise an IPR Claim except in accordance with the written instructions of Digital Barriers; and

(c) acts in accordance with the instructions of Digital Barriers and gives Digital Barriers all such assistance, documents and information as Digital Barriers reasonably requires in relation to the conduct of the defence or settlement of such IPR Claim (and Digital Barriers shall reimburse the Customer its reasonable costs incurred in complying with the provisions of this Clausen10.1(c)).

10.2 Digital Barriers shall have no liability to the Customer in respect of an IPR Claim if the same results from: (a) any breach of the Customer’s obligations or any restrictions placed on the Customer under the Agreement or the Customer’s negligence or wilful misconduct; (b) the use of any software and Application which is contrary to express written instructions provided by Digital Barriers to the Customer; (c) use of the Software (or any part thereof) after Digital Barriers has provided a modification or replacement of the same; (d) modifications made to the Application or Subscribed Services without the prior written consent of Digital Barriers; or (e) the combination, operation, or use of the Application or Subscribed Services with other Intellectual Property Rights, services or products supplied by a third party wherein the infringement would not have occurred but for such combination, operation or use.

10.3 In the event that the Application or Subscribed Services (other than Non-Digital Barriers Materials) infringes the Intellectual Property Rights of a third party, Digital Barriers shall be entitled at its own expense and option either to: (a) procure the right for the Customer to continue using the Subscribed Services (other than the Non-Digital Barriers Materials); (b) make such alterations, modifications or adjustments to the Subscribed Services (other than Non-Digital Barriers Materials) (or part thereof) so that it becomes non infringing whilst not substantially altering the functionality; or (c) terminate the Customers subscriptions for the Subscribed Services that are impacted by the IPR Claim upon thirty (30) days’ notice, and refund the unconsumed pre-paid Fees in respect of the Subscribed Services that have been terminated.

10.4 Clauses 10.1 to 10.3 (inclusive) constitutes the Customer’s exclusive remedy and the only liability of Digital Barriers in respect of any IPR Claims.

10.5 The Customer shall indemnify Digital Barriers (who shall have no duty to mitigate its loss) in respect of any and all costs, awards, claims, losses, damages, liabilities, expenses (including all reasonable legal fees and costs), in each case whether or not foreseeable, that are incurred or suffered by or made against it connected in any way with: (a) the Customer Data or the use of the Subscribed Services in conjunction with the Customer Data; (b) any Materials provided by the Customer; and/or (c) any misuse of the Subscribed Services that results in a breach of this Agreement.
Limitation of liability
11.1 The extent of liability of Digital Barriers under or in connection with the Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 11.

11.2 Subject to clauses 11.3, 11.4 and 11.5, the aggregate liability of Digital Barriers in respect the Services (howsoever arising under or in connection with the Agreement) shall not exceed the total amount of the Fees paid for the Subscribed Services giving rise to the liability in the twelve (12) months preceding the claim.

11.3 Subject to clauses 11.4 and 11.5, the aggregate liability of Digital Barriers in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with the Agreement) shall not exceed one thousand pounds sterling (£1,000).

11.4 Subject to clause 11.5, Digital Barriers shall not be liable for any consequential, indirect or special losses, nor will Digital Barriers be liable for any of the following (whether direct or indirect): (a) loss of profit; (b) destruction, loss of use or corruption of data; (c) loss or corruption of software or systems; (d) loss or damage to equipment; (e) loss of use; (f) loss of production; (g) loss of contract; (h) loss of opportunity; (i) loss of savings, discount or rebate (whether actual or anticipated); and/or (j) harm to reputation or loss of goodwill.

11.5 Notwithstanding any other provision of the Agreement, the liability of Digital Barriers shall not be limited in any way in respect of the following:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other losses which cannot be excluded or limited by applicable law.

11.6 This clause 11 shall survive the termination or expiry of the Agreement.
Term and termination
12.1 The Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the duration of the Service Period. Unless otherwise specified in the Order Form, the Service Period will automatically renew for additional twelve (12) month periods, unless either party provides at least thirty (30) days’ notice before the end of the relevant Service Period, or renewal period.

12.2 Either party may terminate the Agreement immediately at any time by giving notice in writing to the other party if:

(a) the other party commits a material breach of the Agreement, which is either incapable of remedy (other than as to time of performance) or, if capable of remedy, the party in default fails to remedy the breach within thirty (30) days of receiving notice to do so from the other party; or

(b) the other party becomes insolvent, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, ceases or threatens to cease to carry on business or (being an individual) is the subject of a bankruptcy petition or order.

12.3 Digital Barriers shall be entitled to terminate the Agreement if a Customer fails to pay any amount due and payable under the Agreement on the due date and remains in default for fifteen (15) days. For the avoidance of doubt Digital Barriers shall not exercise its rights under this clause if the Fees that are due have been disputed by the Customer in good faith and the Customer is co-operating with Digital Barriers to settle the dispute.

12.4 Digital Barriers may terminate or suspend the provision of Free or Trial Services (and all related Support Services) at any time with or without notice.

12.5 For the purpose of clause 12.2 any breach by the Customer of the Acceptable Use Policy or of clauses 6 shall be deemed a material breach of the Agreement which is not remediable.
Consequences of termination
13.1 Immediately on termination or expiry of the Agreement (for any reason), the rights granted by Digital Barriers under the
Agreement shall terminate and the Customer shall (and shall procure that each Authorised User and Authorised Affiliate shall):
(a) stop using the Services; and (b) destroy and delete or, if requested by Digital Barriers, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).13.2 Termination or expiry of the Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.
Entire agreement
14.1 The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.14.2 Each party acknowledges that it has not entered into the Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement.
Notices
15.1 All notices given to the other party under or in connection with this Agreement shall be in writing and in English and shall be either: (a) delivered by hand; (b) sent by first class post or other next working day delivery service providing proof of postage or delivery; or (c) sent by email, to the relevant address set out in the Order Form or to such other address as a party may designate by notice to the other party from time to time. Any such notice will be deemed to have been served, if by hand, when delivered on signature of a delivery receipt; if by first class post or other next working day delivery service, by 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or if sent by email at the time of transmission. In the event that notice is sent by email, a copy of the notice shall be provided using one of the other methods of service, to confirm successful service of the notice.
Variation
16.1 Except for an Update made in accordance with this Agreement, no variation of the Agreement shall be valid or effective unless it is made in writing, refers to the Agreement and is duly signed or executed by, or on behalf of, each party.
Assignment and subcontracting
17.1 The Customer may not assign, transfer, charge, subcontract, or deal in any other manner with the Agreement (in whole or in part) or any or all of its rights and/or obligations under the Agreement without the prior written consent of Digital Barriers.

17.2 Digital Barriers may freely subcontract, assign, transfer, charge or deal in any other manner with any or all of its rights and/or obligations under the Agreement, provided in the case of assignment that it gives written notice of the same to the Customer.
Set off
18.1 Each party shall pay all sums that it owes to the other party under the Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
No partnership or agency
19.1 The parties are independent and are not partners or principal and agent and the Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
Severance
20.1 If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Agreement shall not be affected.20.2 If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
Force Majeure
To the maximum extent permitted by law, Digital Barriers shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of the Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Force Majeure Event.
Waiver
22.1 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. No failure or delay by a party to exercise any of its rights or remedies under the Agreement or at law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Export
The Customer shall not in any circumstances export, directly or indirectly, any technical data acquired from Digital Barriers under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
Costs and expenses
Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Agreement (and any documents referred to in it).
Third party rights
A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
Authority
Each party represents and warrants to the other that it has the right, power and authority to enter into the Agreement and grant to the other the rights (if any) contemplated in the Agreement and to perform its obligations under the Agreement.
Counterparts
The Agreement may be executed digitally or electronically, and/or in any number of counterparts, each of which is an original and all of which evidence the same agreement between the parties.
Governing law and Jurisdiction

28.1 The Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by the laws of England and Wales.28.2 Each party irrevocably agrees that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).