1.2 The definitions and rules of interpretation in this paragraph 1 apply to the Terms.
API: any application programming interface provided by RankedRight which, once configured, enables the Customer to connect to the Software.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Back Up Policy: the back-up policy made available as part of the Documentation or such other document or website address as may be notified to the Customer from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Data: the data inputted by the Customer, Authorised Users or RankedRight on their behalf, or data collected via the platform or API, for the purpose of using the Services.
Derived Data: any data which has been combined or aggregated (wholly or in part) with other data or information or adapted such that it cannot be identified as originating or deriving directly from the data and cannot be reverse-engineered such that it can be so identified.
Documentation: any document, material or information made available to the Customer by RankedRight on the Platform or otherwise, which sets out a description of the Services and any corresponding Service Levels (if any), details of the Processing of Personal Data, the technical specifications, systems requirements, installation guides and user instructions for the Customer’s use of the Services, and any support and maintenance arrangements for the Services, all as may be updated by RankedRight from time to time.
Effective Date: the date that the Customer accepts these Terms or signs up to use the Services, whichever is earlier..
Initial Subscription Term: means the period commencing on the Effective Date and continuing for the period selected by the Customer on the Platform or otherwise when signing up to receive the Services. .
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, 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.
(a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names;
(b) any identifying slogans and symbols;
(c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and
(d) the “look and feel”,
of a party to this agreement, whether or not registered.
Notice: has the meaning given in paragraph 25.1.
Personal Data: has the meaning given to such term in Schedule 1.
Platform: the Site, including any applicable Software.
Renewal Term: has the meaning given in paragraph 15.1.
Service Levels: any service levels for the Services (if any), as set out in the Documentation
Services: the subscription services, which provide a platform for customers to rank their own organisation’s vulnerabilities, provided by RankedRight to the Customer under the Terms via the platform and/or API notified to the Customer by RankedRight from time to time, all as more particularly described in the Documentation, for the applicable Subscription Level.
Site: https://rankedright.com or any other website notified to the Customer by RankedRight from time to time.
Software: the online software applications provided by RankedRight as part of the Services, including any API provided by RankedRight to access the same.
Subscription Fees: the subscription fees (if applicable) payable by the Customer to RankedRight for the number of Authorised Users and Subscription Level subscribed for by the Customer, as set out on the Platform or as otherwise notified by RankedRight to the Customer.I
Subscription Level: the subscription level selected by the Customer when signing up to receive the Services on the Platform or otherwise, which shall include the extent of the Services to be provided (as set out in the Documentation) which may include the number of permitted IP addresses, subject always to paragraph 5.3.
Subscription Term: the period, comprising the Initial Subscription Term and any Renewal Terms.
Usage Data: any usage and statistical data relating to the Customer’s use of the Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Terms.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Terms under that statute or statutory provision.
2. THESE TERMS
2.1 By signing up to receive the Services via the Platform, or otherwise agreeing with RankedRight to receive the Services, the Customer agrees to be bound by the Terms.
3. RIGHT TO USE
3.1 Subject to the Customer paying the applicable Subscription Fees in accordance with paragraph 9, the restrictions set out in this paragraph 3 (Right to Use), paragraph 4 (Restrictions) and the other terms and conditions of the Terms, RankedRight hereby grants to the Customer a non-exclusive, non-transferable right, without the ability to grant such right to third parties, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term, solely for the Customer’s internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the Subscription Level it has signed up for and (if applicable) purchased;
3.2.2 it will not allow or suffer any user account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
3.2.3 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed regularly and that each Authorised User shall keep his password confidential; and
3.2.4 it shall maintain a record of current Authorised Users and provide such list to RankedRight within 5 Business Days of RankedRight’s written request.
3.3 The rights provided under this paragraph 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1 During the course of its use of the Services, the Customer shall not access, store, distribute, transmit or submit any Viruses or any material that is, or potentially is, offensive, explicit, illegal, harmful or prejudicial to any person or property. RankedRight reserves the right, without liability to the Customer or prejudice to its other rights, to delete or disable the Customer’s access to any material that breaches the provisions of this paragraph.
4.2 The Customer shall not:
4.2.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Terms:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4.2.2 access or use all or any part of the Software, Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation or the business of RankedRight; or
4.2.3 use or facilitate the use of the Software, Services and/or Documentation other than as expressly permitted by the terms of the Terms.
4.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify RankedRight.
4.4 In the event of:
4.4.1 any use of the Services by Customer personnel other than by Authorised Users; or
4.4.2 any use of the Services by Authorised Users that in RankedRight’s reasonable judgment threatens the security, integrity or availability of the Services (or services provided by RankedRight to its other customers); or
4.4.3 any use of the Services that breaches the provisions of paragraphs 4.1, 4.2 or 4.3; or
4.4.4 any use of the API by any third party;
RankedRight reserves the right, without liability to the Customer or prejudice to its other rights, to suspend its provision of the Services, provided that RankedRight will use commercially reasonable efforts to notify the Customer and provide the Customer with an opportunity to remedy such violation or threat prior to such suspension.
5.1 RankedRight shall make available the Services to the Customer during the Subscription Term and configure the Software to enable the Customer’s access to the Services (subject to the Customer’s compliance with the technical specifications, installation instructions and systems requirements for the Services and API as set out in the Documentation).
5.2 RankedRight shall provide the Services for the relevant Subscription Level, subject to the Terms and subject to any limitations, exclusions or system requirements set out in the Documentation.
5.3 RankedRight may change the specification of the Services from time to time. RankedRight may also change the Customer’s Subscription Level to the nearest equivalent available subscription level, in the event that RankedRight discontinues the Customer’s current Subscription Level from the services that RankedRight generally makes available to its customers. RankedRight shall inform the Customer of any such changes and make available an updated version of the Documentation as applicable. The Customer may, acting reasonably, object to such changes by notifying RankedRight in writing within 10 Business Days of receiving notification of the relevant changes from RankedRight. In the event the Customer so objects within this period, and RankedRight and the Customer have not agreed a resolution in writing within 20 Business Days of the receipt of such notice, the Customer may, by providing immediate written Notice to RankedRight, terminate its subscription with respect to the affected Services without liability to RankedRight.
5.4 RankedRight will refund any prepaid portion of the Subscription Fees in respect of the remainder of the Subscription Term following the effective date of termination with respect to such terminated Services under paragraph 5.3.
6. PERSONAL DATA
6.1 The provisions of Schedule 1 shall apply to Personal Data.
7. RANKEDRIGHT’S RIGHTS AND OBLIGATIONS
7.1 During the Subscription Term, RankedRight undertakes that the Services will be performed substantially in accordance with the Documentation and the Service Levels set out therein (if applicable) and with reasonable care and skill.
7.2 The undertaking at paragraph 7.1 shall not apply to the extent of any non-conformance which is caused by, and RankedRight is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
7.2.1 use of the Services contrary to RankedRight’s instructions, or modification or alteration of the Services by any party other than RankedRight or RankedRight’s duly authorised contractors or agents; or
7.2.2 the transfer of data over communications networks and facilities, including the internet (and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities); or
7.2.3 any period of force majeure as defined in paragraph 17 (Force majeure); or
7.2.4 the Customer’s failure to fulfil its responsibilities as set out in these Standard Terms and the Documentation; or
7.2.5 any of the other limitations or exclusions set out in the Documentation.
7.3 Notwithstanding the foregoing, RankedRight does not warrant that:
7.3.1 the Customer’s use of the Services will be uninterrupted or error-free;
7.3.2 that the Services, Documentation and/or the information obtained by the Customer through the Services will meet their requirements; or
7.3.3 the Software or the Services will be free from Vulnerabilities or Viruses.
7.4 The Terms shall not prevent RankedRight 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 Terms.
7.5 Subject to sub-paragraph 8.1.6, RankedRight warrants that it has and will maintain all necessary licences, consents, and permissions that it requires in order to perform its obligations under the Terms.
7.6 RankedRight shall follow its archiving procedures for Data as set out in its Back-Up Policy, as such document may be amended by RankedRight in its sole discretion from time to time. In the event of any loss or damage to Data, the Customer’s sole and exclusive remedy against RankedRight shall be for RankedRight to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by RankedRight in accordance with the archiving procedure described in its Back-Up Policy. RankedRight shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except those third parties sub-contracted by RankedRight to perform services related to Data maintenance and back-up for which it shall remain fully liable).
7.7 RankedRight shall have the right to use the Customer’s name and Marks (a) in a list of RankedRight’s customers in any medium or in any link from the Software or Services to the Customer’s website, and (b) in any medium for promotional, marketing and financial reporting purposes. The Customer warrants that it has in place and will maintain all necessary rights or licences in respect of the Customer’s name and Marks in order for RankedRight to exercise its rights under this paragraph 7.7.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
8.1.1 provide RankedRight with:
(a) all necessary co-operation in relation to the Terms; and
(b) all necessary access to such information as may be required by RankedRight;
in order to provide the Services, including but not limited to Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities in connection with the Terms and the Services;
8.1.3 carry out all other Customer responsibilities set out in the Terms in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, RankedRight may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 configure its access to the Services via the platform or the API in accordance with RankedRight’s instructions;
8.1.5 ensure that the Authorised Users use the Services and the Documentation in accordance with the Terms and shall be responsible for any breach of the Terms caused or contributed to by any acts or omissions on the part of any Authorised User;
8.1.6 obtain and shall maintain all necessary licences, consents, and permissions that it requires in order for RankedRight, its contractors and agents to perform their obligations and exercise their rights under the Terms, including without limitation the Services;
8.1.7 have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Data;
8.1.8 as between the parties, be responsible for responding to all third party requests concerning the use of the Services by the Customer; and
8.1.9 be, to the extent permitted by law and except as otherwise expressly provided in the Terms, solely responsible for:-
(a) procuring, maintaining and securing its network connections and telecommunications links from its systems to RankedRight’s data centres; and
(b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
9.1 If the Customer opts to receive Services to which Subscription Fees apply, in consideration of the rights granted in paragraph 3 and the provision of the Services during the Subscription Term, the Customer shall pay the applicable Subscription Fees in accordance with this paragraph 9.
9.2 The Customer shall:-
9.2.1 in the event RankedRight issues an invoice to the Customer, pay any amounts due within 30 days of the date of RankedRight’s invoice and
9.2.2 in the event RankedRight requires payment prior to the commencement of the Services, pay any amounts due:-
(a) on or before the Effective Date, in respect of Subscription Fees applicable to the Initial Subscription Term; and
(b) on or before commencement of the applicable Renewal Term, in respect of Subscription Fees applicable to any Renewal Term,
in each case via a method payment permitted on the Platform or as otherwise notified by RankedRight to the Customer.
9.3 RankedRight may change the Subscription Fees payable for each Renewal Term by providing written notification to the Customer, provided that RankedRight provides any notification of increases at least 20 Business Days prior to the start of the applicable Renewal Term in order to give the opportunity for the Customer to cancel its subscription in accordance with paragraph 15.1.
9.4 If RankedRight has not received payment when due under paragraph 9.1, and without prejudice to any other rights and remedies of RankedRight:
9.4.1 RankedRight may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and RankedRight shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in these Standard Terms:
9.5.1 are non-cancellable and non-refundable, except in accordance with paragraphs 5.3, 13.2.3 or 15.2; and
9.5.2 are exclusive of value added tax or any other equivalent sales tax or similar taxes, which shall be added to RankedRight’s invoice(s) at the appropriate rate.
9.6 Where Customer’s accounting system requires the issuance of purchase orders (or similar document), Customer shall issue purchase orders in a timely manner in advance of the date of issue of the applicable invoices. RankedRight may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services, and RankedRight shall be under no obligation to provide any or all of the Services, if at any time it is not in possession of purchase order cover for the full value of the Subscription Fees; provided always that the Terms shall constitute a binding agreement notwithstanding the absence of a purchase order from Customer.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 RankedRight and/or its licensors own all Intellectual Property Rights in the Software, Services and the Documentation. Except as expressly stated herein, the Customer acknowledges and agrees nothing in the Documentation or the Terms grants the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Software, Services or the Documentation.
10.2 The Customer acknowledges and agrees that RankedRight and/or its licensors shall own all Intellectual Property Rights in any improvements, amendments or additions to the Software, Services and the Documentation, whether such improvements, amendments or additions are a result of comments, information, opinions or suggestions made by the Customer or otherwise.
11. LICENCE OF DATA
11.1 The Customer grants to RankedRight a non-exclusive, royalty-free perpetual, irrevocable worldwide licence, with no end date, for RankedRight to (i) access, view and use the Data for the purpose of providing of the Services, and (ii) access, view, use, store, modify, combine and aggregate the Usage Data, for any purpose and in any way whatsoever, and (iii) use the Usage Data to create Derived Data.
11.2 RankedRight shall own all Intellectual Property Rights in the Derived Data and the Customer acknowledges that it shall have no rights in relation to the Derived Data.
12.1 In this paragraph, “Confidential Information” means any and all non-public information that would be regarded as confidential by a reasonable business person and relating to the business plans, financial information, operations, processes, know-how, designs, trade secrets or services of the disclosing party as well as such information with respect to a third party disclosed by or on behalf of one party to the other party in connection with the Terms and the Services, whether marked confidential or not.
12.2 Each party undertakes that it shall not at any time use or disclose to any person (and shall use its best endeavours to prevent the use, publication or disclosure of) any Confidential Information except as permitted by paragraph 12.3.
12.3 Each party may disclose the other party’s Confidential Information:
12.3.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this paragraph; and
12.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.4 Neither party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the agreement.
12.5 Nothing shall preclude RankedRight from identifying the Customer as a customer of RankedRight save that RankedRight shall not make public the specific nature of any Services performed for or on behalf of the Customer without the prior written consent of the Customer.
13.1 RankedRight shall defend, indemnify and hold harmless the Customer against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) attributable exclusively to a claim (a “Claim”) that the use of the Software, Services or Documentation (“Indemnified Items”) infringes a third party’s Intellectual Property Rights in the United Kingdom.
13.2 If any Indemnified Item is found to infringe in the United Kingdom a third party’s Intellectual Property Rights, or in the reasonable opinion of RankedRight is likely to be the subject of a Claim, RankedRight may, at its option:
13.2.1 obtain for the Customer the right to use the Indemnified Item;
13.2.2 replace or modify the Indemnified Item so that it becomes non-infringing; or
13.2.3 remove the Indemnified Item and refund any prepaid portion of the Subscription Fees paid in advance in respect of any affected Services for the period following such removal.
13.3 RankedRight shall have no liability or obligation to the extent that any Claim results from:
13.3.1 use of any Indemnified Item in combination with any software, hardware, Intellectual Property Rights, products or other equipment or materials not supplied by or approved in writing by RankedRight;
13.3.2 RankedRight’s compliance with designs or specifications of the Customer;
13.3.3 use of an allegedly infringing version of the Indemnified Item, if the infringement could have been avoided by the use of a later version made available to the Customer by RankedRight;
13.3.4 the Customer’s use of an Indemnified Item in a manner contrary to the instructions given to the Customer by RankedRight;
13.3.5 the Customer’s use of an Indemnified Item after notice of the alleged or actual infringement from RankedRight or the third party; or
13.3.6 modification, repair, adjustment or enhancement of the Indemnified Item other than by or on behalf of RankedRight or at RankedRight’s written direction.
13.4 In no circumstances shall RankedRight be liable for any losses, costs or expenses incurred by the Customer for any indirect, consequential or special loss or damage.
13.5 The provisions of this paragraph 13 state the entire liability and obligation of RankedRight and exclusive remedy of the Customer for claims that any Indemnified Item infringes a third party’s intellectual property rights.
13.6 The Customer shall defend, indemnify and hold harmless RankedRight against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:-
13.6.1 the Customer’s use of the Services and/or Documentation;
13.6.2 the Customer’s Marks or use of RankedRight’s Intellectual Property Rights in conjunction with such Marks; and
13.6.3 a Claim that use of the Data infringes a third party’s Intellectual Property Rights.
13.7 The indemnity obligations in paragraphs 13.1 and 13.6 are conditional upon:
13.7.1 the indemnified party giving written Notice of the Claim promptly to the indemnifying party;
13.7.2 the indemnifying party having sole control of the defence and settlement of the Claim;
13.7.3 the indemnified party not compromising or settling such Claim;
13.7.4 the indemnified party providing to the indemnifying party, at the indemnifying party’s expense, all available information and assistance; and
13.7.5 the indemnified party using all reasonable endeavours to mitigate any losses or damage.
14. LIMITATION OF LIABILITY
14.1 Except as expressly and specifically provided in the Terms:
14.1.1 the Customer assumes sole responsibility, and RankedRight shall have no liability, for results obtained from the use of the Services and the Documentation by the Customer for conclusions drawn by the Customer from such use, and for any actions taken by the Customer in consequence of such results or conclusions;
14.1.2 RankedRight shall have no liability for any damage caused by errors, inaccuracies or omissions in the Data or any other information or instructions provided by the Customer in connection with the Services, or any actions taken by RankedRight at the Customer’s direction; and
14.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
14.2 Nothing in the Terms excludes or limits the liability of either party:
14.2.1 for death or personal injury caused negligence;
14.2.2 for fraud or fraudulent misrepresentation;
14.2.3 for breach of the obligations implied by section 12 of the Sale of Goods Act 1979, or section 2 of the Supply of Goods and Services Act 1982; or
14.2.4 any other liability which may not be excluded by law.
14.3 Subject to paragraph 14.2 RankedRight shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
14.3.1 any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or
14.3.2 any special, indirect or consequential loss, costs, damages, charges or expenses;
in either case, however arising in connection with the Services.
14.4 Subject to paragraphs 14.1, 14.2 and 14.3, RankedRight’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall, in respect of any claim, be limited to the total Subscription Fees paid or payable in respect of the Service Order relevant to such claim during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
15.1 The Services shall, unless otherwise terminated as provided in this paragraph 15, commence on the Effective Date and continue until the end of the Initial Subscription Term. Thereafter the relevant Service Order will automatically renew for successive terms, each for a period of time equivalent to the length of the Initial Subscription Term (each a “Renewal Term”) on the same terms and conditions (subject to any change in the Fees in accordance with paragraph 9) unless either party provides the other with its written intention not to renew at least 30 days’ prior to the end of the Initial Subscription Term or the then-current Renewal Term, as applicable.
15.2 RankedRight may terminate the Services for convenience at any time by giving not less than 30 days’ prior written Notice to the Customer, and provided that RankedRight shall refund the Customer any prepaid portion of any applicable Subscription Fees in respect of the remainder of the applicable Subscription Term following the effective date of termination.
15.3 Without affecting any other right or remedy available to it, either party may terminate the Services with immediate effect by giving written Notice to the other party if:
15.3.1 the other party fails to pay any amount due and payable on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
15.3.2 the other party commits a material breach of any other provision of the Terms, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
15.3.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
15.3.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.3.5 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.
15.4 On termination of the Services for any reason:
15.4.1 all rights granted to Authorised Users shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and the Documentation in relation to such;
15.4.2 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 party;
15.4.3 RankedRight shall, at the request of the Customer, destroy or otherwise dispose of any of the Data in its possession as soon as reasonably practicable; and
15.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
16. EXPORT CONTROL
16.1 The Customer acknowledges that the Software may be subject to restrictions and controls imposed by the United Kingdom export control laws and obligations and similar laws in other jurisdictions. Customer agrees to comply, at its own expense, with all applicable export and re-export control laws and regulations.
17. FORCE MAJEURE
17.1 Neither party shall have any liability to the other party if it is prevented from or delayed in performing its obligations under the Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party the subject of the force majeure event, or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
18.1 No failure or delay by a party to exercise any right or remedy provided under the Terms or by 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.
19. RIGHTS AND REMEDIES
19.1 Except as expressly provided in the Terms, the rights and remedies provided under the Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of the Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms, and the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. ENTIRE AGREEMENT
21.1 The Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into the Terms it has not relied on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Terms.
21.3 Neither RankedRight or the Customer shall have a claim for innocent or negligent misrepresentation based on any statement in the Terms.
22.1 The Customer shall not, without the prior written consent of RankedRight, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Terms.
22.2 RankedRight may at any time (i) engage subcontractors in the provision of the Services and (ii) by Notice to the Customer (and without any requirement to seek consent of the Customer) assign all or any of its rights under the Terms to a third party.
23. NO PARTNERSHIP OR AGENCY
23.1 Nothing in the Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. THIRD PARTY RIGHTS
24.1 The Terms do not confer any rights on any person or party (other than the parties to the Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under the Terms, including without limitation, notices of early termination, breach and the like, (“Notices”) shall be in writing and in English and, where sent (i) in physical form, shall be sent by commercial courier, or a Royal Mail service that provides for evidence of time and date of delivery, to the other party at its address as last notified by that party for such purposes; and (ii) by email to the representative email address notified by that party in the relevant Service Order and shall be deemed received when sent, provided no bounce back or notification of failed delivery has been received by the sender.
26. GOVERNING LAW
26.1 The Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
27.1 The Customer and RankedRight irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 – PERSONAL DATA
1.1 Terms used but not defined in this Schedule shall have the meaning ascribed to them in the main body of the Terms.
1.2 Specific terms used in this Schedule are set out below.
Applicable Laws: means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
b) To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject.
Applicable Data Protection Laws: means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing: shall have the meanings given to them in the GDPR (and Process and Processed shall be construed accordingly).
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
UK GDPR: the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR).
1.3 For the purposes of the Applicable Data Protection Laws, the Customer is the Controller of Personal Data.
2.1 Each Party undertakes to comply with all applicable requirements of the Applicable Data Protection Laws in connection with the Terms.
2.2 RankedRight shall Process Personal Data solely on the documented instructions of the Customer (including the transfer of Personal Data to third countries outside the UK, Switzerland and the European Union, each an “International Transfer”) which documented instructions shall include the Terms and the details set out in the Documentation (in relation to the Processing referred to herein) unless Processing is otherwise required by Union or Member State law, in which case RankedRight shall inform the Customer of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest.
2.3 The Documentation sets out the subject matter and duration of the Processing, the nature and purpose of the processing, the type of Personal Data and the categories of Data Subjects.
2.4 RankedRight shall ensure that its personnel authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
2.5 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, RankedRight shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk when Processing Personal Data.
2.6 RankedRight shall be generally authorized to engage another Processor (a “Sub-processor”) to Process the Personal Data, subject to meeting the conditions set out in Article 28 (2) and (4) of the GDPR.
2.7 RankedRight shall promptly notify the Customer of any communication from a Data Subject regarding the Processing of Personal Data, or any other communication relating to the Customer’s obligations under the Applicable Data Protection Laws in respect of Personal Data and, taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Chapter III of the GDPR.
2.8 RankedRight shall notify the Customer without undue delay of any Personal Data Breach of Personal Data of which it becomes aware and assist Customer with its obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and information available to RankedRight.
2.9 RankedRight shall cease Processing the Personal Data upon the termination or expiry of the Terms and at the Customer’s option, either return (at the Customer’s expense) or delete all copies of the Personal Data Processed by RankedRight unless (and solely to the extent and for such period as) Union or Member State law requires storage of the Personal Data.
2.10 RankedRight shall make available to the Customer on request, and no more than once in a 12-month period, all information necessary to demonstrate compliance with this Schedule 2 and with Article 28 of the GDPR, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer (not being a competitor of RankedRight).
2.11 RankedRight shall promptly inform the Customer if, in its opinion, an instruction infringes Applicable Data Protection Laws.
2.12 The Customer represents, undertakes and warrants that all Personal Data has been and shall be collected and Processed by the Customer in accordance with the Applicable Data Protection Laws and, without limitation to the foregoing, the Customer shall take all steps necessary, including providing appropriate fair collection notices and ensuring that there is a lawful basis for Processing, in order to ensure the Processing of Personal Data by RankedRight is in accordance with the Applicable Data Protection Laws.
2.13 RankedRight shall inform the Customer in advance of (i) any intended International Transfer; or (ii) the intended appointment of any new Sub-processor. In the event that the Customer objects to an intended International Transfer and/or RankedRight’s intended use of a new Sub-processor then it shall notify RankedRight in writing within ten Business Days of receiving the relevant notification. In the event the Customer so objects within this period, RankedRight will use reasonable efforts to propose a change in the Services or alternative services to avoid, as applicable, the objected-to International Transfer or Processing of Personal Data by the objected-to Sub-processor. Any such change to the Services or migration to alternative Services will be subject to mutual agreement and may be subject to additional charge. Subject to the preceding, if RankedRight and the Customer have not agreed a resolution in writing within twenty Business Days of the Customer informing RankedRight of its objection then either party may, by providing written Notice to the other party, terminate the relevant Service Order with respect only to those Services which cannot be provided by RankedRight without the use of the objected-to International Transfer or new Sub-processor. RankedRight will refund any prepaid portion of the Subscription Fees in respect of the remainder of the Subscription Term following the effective date of termination with respect to such terminated Services.