SaaS Agreement Terms and Conditions

1. The definitions and rules of interpretation in this clause apply in this Agreement.

   Additional Services

   means any and all services which are not Services as set forth in the Order Form.

   Business Day

   means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

   Customer

   means the person, individual or company entity as specified as Customer in the Order Form.

   Data Protection Legislation

   means the United Kingdom General Data Protection Regulation (“UK GDPR”), as incorporated into UK law by the European Union (Withdrawal) Act 2018, as amended or supplemented from time to time, together with the Data Protection Act 2018 and any subordinate legislation made under it.

   Initial Subscription Term

   means the initial term of the Agreement as set out in the Order Form.

   Intellectual Property Rights

   means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.

   Level of Access

   means the level of access granted to the Users under the Subscription and as specified in the Order Form.

   Minimum Notice Period

   means the minimum notice period specified in the Order Form.

   Normal Business Hours

   means 9.00 am to 6.00 pm local UK time, each Business Day.

   Order Form

   means an ordering document specifying the Services to be provided hereunder that is entered into between the Customer and the Supplier.

   Payment Terms

   means the payment terms specified in the Order Form.

   Personal Data

   means Personal Data as defined in the UK GDPR.

   Renewal Period

   means the period specified in the Order Form.

   Services

   means the services provided by the Supplier to the Customer under the Agreement via any website as notified to the Customer by the Supplier from time to time, as more particularly described in the Order Form.

   Software

   means the online SaaS platform known as Companion and its software applications provided by the Supplier as part of the Services.

   Subscriptions

   means the license purchased by the Customer pursuant to clause 9.1 which entitle User Logins to access and use the Services in accordance with the Agreement.

   Subscription Fees

   means the subscription fees payable by the Customer to the Supplier for the Subscriptions, as set out in the Order Form.

   Subscription Start Date

   means the date specified in the Order Form.

   Subscription Term

   has the meaning given in clause 13.1 being the Initial Subscription Term together with any subsequent Renewal Periods.

   User

   means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause 2.2.5.

   User Logins

   means the number of user logins as specified in the Order Form.

   Virus

   means 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.

2. Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
9. A reference to writing or written includes e-mail.
10. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the Order Form.

1. Subject to the Customer purchasing the Subscriptions in accordance with clause 3.4 and clause 9.1 or arranging a Trial (defined below) in accordance with clause 2.7, the restrictions set out in this clause 2 and the other terms and conditions of the Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the User Logins to use the Services during the Subscription Term solely for the Customer’s internal business operations.
2. The Customer undertakes that:
   1. the maximum number of User Logins that it authorises to access and use the Services shall not exceed the number of Subscriptions it has purchased from time to time. A cap of one User per User Login applies unless it is stated in the Order Form that a higher cap on the number of User Logins per Subscription shall apply in which case the Customer shall not exceed that cap instead;
   2. in the event that a cap of one User per Subscription applies as per clause 2.2.1, it will not allow or suffer any Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior User shall no longer have any right to access or use the Services;
   3. it will only use the Services to track social media users who are social media influencers who are already endorsing Customer products or services on social media voluntarily or in connection with a paid partnership with the Customer and/or whom the Customer is potentially interested in partnering with in the future and ensure that the User Logins are aware of and comply with this restriction;
   4. each Subscription shall have a secure password for allowing access to the Services, that such passwords shall be changed no less frequently than every three (3) months and that each User shall keep any such passwords confidential;
   5. it shall maintain a written, up to date list of current User Logins and provide such list to the Supplier within five (5) Business Days of the Supplier’s written request at any time;
   6. it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the login name and password relating to each Subscription, the User Logins given access to each Subscription and the Supplier’s data processing facilities to audit compliance with the Agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
   7. if any of the audits referred to in clause 2.2.6 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords (and the Supplier shall disable the relevant password if the Customer is unable to do so promptly) and the Supplier shall not issue any new passwords to any such individual; and
   8. if any of the audits referred to in clause 2.2.7 reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the Subscription Fees set out in the Order Form within ten (10) Business Days of the date of the relevant audit.
   9. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
   10. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
   11. facilitates illegal activity;
   12. depicts sexually explicit images;
   13. promotes unlawful violence;
   14. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
   15. is otherwise illegal or causes damage or injury to any person or property;
   16. and the Supplier reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer’s access to any material that breaches the provisions of this clause.
3. The Customer shall not:
   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 Agreement:
   2. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
   3. 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. access all or any part of the Services in order to build a product or service which competes with the Services; or
   5. use the Services to provide services to third parties; or
   6. subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the User Logins; or
   7. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
   8. The Customer shall prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
   9. The rights provided under clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
   10. If the Customer so requests, the Supplier may elect to make the Services available to the Customer on a trial basis (the “Trial”) in accordance with this Agreement and a suitably adjusted Order Form. Notwithstanding any other provision of this Agreement:
       1. the Trial may be terminated with immediate effect at any time by the Supplier in its sole discretion;
       2. the Customer may be made aware of additional terms and conditions that apply to such a Trial and any such terms and conditions are incorporated into the Agreement by reference and are legally binding; and
       3. any Customer Data entered into the Software and any configurations or customisations made to the Services by the Customer during a Trial will be permanently lost unless the Customer purchases a subscription to the Services before the end of the Trial.

1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional Subscriptions in excess of the number set out in the Order Form or purchase Additional Services, and the Supplier shall grant access to the Services to such additional User Logins or provide such Additional Services in accordance with the provisions of the Agreement.
2. If the Customer wishes to purchase additional Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such a request for additional Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional Subscriptions within five (5) Business Days of its approval of the Customer’s request.
3. If the Customer wishes to purchase Additional Services, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such requests for Additional Services and respond to the Customer with approval or rejection of the request. The Supplier shall be entitled to approve or reject such requests at its full discretion. Where the Supplier approves the request, the Supplier shall respond to the Customer with a fee, a timeframe for delivery and/or performance and any other applicable commercial terms (“Additional Terms”) for such Additional Services. The Customer shall, within five (5) Business Days of the Supplier’s response, confirm its acceptance or rejection of the Additional Terms. Where the Customer approves the Additional Terms, the parties shall execute a variation to this Agreement incorporating the Additional Terms in accordance with clause 17 and the Supplier shall commence providing the Additional Services in accordance with such variation and the provisions of the Agreement.
4. If the Supplier approves the Customer’s request to purchase additional Subscriptions or the Customer agrees to the Additional Terms for the provision of Additional Services by the Supplier, the Customer shall, on receipt of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional Subscriptions as set out in the Order Form or in the Additional Terms respectively. Alternatively, if the Customer is paying their Subscription Fees by credit card pursuant to clause 9.2.1, the Supplier shall be entitled to bill that credit card for the relevant amount on the date that the additional Subscriptions are activated or the date on which the Customer accepts the Supplier’s Additional Terms. If such additional Subscriptions or Additional Services are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

1. The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of the Agreement.
2. The Supplier shall use commercially reasonable endeavours to make the Services available twenty four (24) hours a day, seven (7) days a week, except for:
   1. planned maintenance carried out during the maintenance window of 12am to 6am UK time; and
   2. unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance.

1. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data.
2. The Supplier shall follow archiving procedures for Customer Data in accordance with general industry practice. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under paragraph 4.1 of Schedule 1 to this Agreement).
3. The parties acknowledge that in respect of the personal data which is processed under the Agreement, the Customer shall be the controller and the Supplier shall be the processor. In those circumstances, the terms at Schedule 1 shall apply.

The Customer acknowledges that the Services may enable or assist it to access content of third parties that has been posted on third party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to any such content. The Supplier recommends that the Customer refers to the relevant third party website’s terms and conditions and privacy policy prior to using any such content. The Supplier does not endorse or approve any third party website nor the content of any third party websites made available via the Services.

1. The Supplier undertakes that the Services will be performed substantially in accordance with the description in the Order Form and with reasonable skill and care.
2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the undertaking at clause 7.1, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
3. makes no warranties regarding the Customer’s satisfaction with the Services;
4. does not warrant that the Customer’s use of the Services will be available at all times, uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
5. is not responsible for any delays, delivery failures, or any other loss or damage resulting from 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.
6. This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

1. The Customer shall:
2. provide the Supplier with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by the Supplier in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
3. without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
4. carry out all other Customer responsibilities set out in the Agreement 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
5. ensure that the User Logins use the Services in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
6. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
7. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8. be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9. Discovery and Demographics Fair Usage
   1. Access to creator Discovery and audience demographic reports is subject to fair usage. Fair usage is based on the equivalent of 500 audience demographic reports per licensed user per month, measured over a rolling 90-day period.
   2. For the purposes of calculating fair usage, one audience demographic report is equivalent to 2.5 creator searches. Usage may comprise any combination of creator searches and audience demographic reports. Temporary periods of higher usage are permitted. Where usage materially or consistently exceeds the applicable fair usage level, Supplier may contact the Customer to discuss additional capacity or licensing.

1. The Customer shall pay the Subscription Fees to the Supplier for the Subscriptions in accordance with this clause 9 and the Order Form. Except as otherwise provided herein or an Order Form:
   1. Subscription Fees are based on Services purchased and not actual usage; and
   2. payment obligations are non-cancellable and Subscription Fees are non-refundable.
   3. There are two (2) options available in relation to payment of the Subscription Fees and the Customer will select their preference via the Order Form:
   4. Payment by credit card. On or before the Subscription Start Date the Customer shall provide to the Supplier valid, up-to-date and complete credit card details and other relevant contact and billing information requested by the Supplier. The Customer hereby authorises the Supplier to bill such credit card:
   5. on or before the Subscription Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
   6. subject to clause 13.1, on each anniversary of the Subscription Start Date for the Subscription Fees payable in respect of the next Renewal Period in accordance with the Payment Schedule and Payment Terms. If the relevant Initial Subscription Term or Renewal Period is for one (1) year, the Customer may be given the option to split the Subscription Fees into two (2) equal biannual or four (4) equal quarterly payments instead, and where this is agreed by the parties it shall be noted in the Order Form. In such a case the Customer hereby authorises the Supplier to bill the first instalment on the Subscription Start Date or the anniversary of the Subscription Start Date (as applicable) and the subsequent instalments:
   7. six (6) months later if the parties agreed to split the Fees into biannual payments; or
   8. three (3) months later, six (6) months later and nine (9) months later respectively if the parties agreed to split the Fees into quarterly payments. Payment by biannual or quarterly instalments does not infer a biannual or quarterly subscription.
2. Payment by bank transfer. On or before the Subscription Start Date the Customer shall provide to the Supplier valid, up-to-date and complete contact and billing information as requested by the Supplier, including approved purchase order information if applicable. The Supplier shall invoice the Customer:
   1. on or before the Subscription Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
   2. subject to clause 13.1, at least thirty (30) days prior to each anniversary of the Subscription Start Date for the Subscription Fees payable in respect of the next Renewal Period in accordance with the Payment Schedule and Payment Terms. If the relevant Initial Subscription Term or Renewal Period is for one (1) year, the Customer may be given the option to split the Subscription Fees into two (2) equal biannual or four (4) equal quarterly payments, and where this is agreed by the parties it shall be noted in the Order Form. In such a case the Supplier shall invoice the Customer for the first instalment on the Subscription Start Date or at least thirty (30) days prior to the anniversary of the Subscription Start Date (as applicable) and the subsequent instalments at least thirty (30) days prior to:
   3. the six (6) month point of the relevant Initial Subscription Term or Renewal Period if the parties agreed to split to split the Fees into biannual payments; or
   4. the three (3) month, six (6) month and nine (9) month point of the relevant Initial Subscription Term or Renewal Period respectively if the parties agreed to split the Fees into quarterly payments. Payment by biannual or quarterly instalments does not infer a quarterly subscription. Unless otherwise stated in the Order Form, the Customer shall in all cases pay each invoice upon receipt of such invoice. Payment of each invoice shall be made by the Customer via bank transfer using the Supplier bank account details stated on the invoice.
3. Customer is responsible for providing valid, complete and accurate credit card, billing and contact information to the Supplier and notifying the Supplier of any changes to such information.
4. If the Supplier has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of the Supplier or the Supplier:
   1. the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services, and the Supplier shall be under no obligation to provide any or all of the Services while the amounts concerned remain unpaid; and
   2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5. All amounts and fees stated or referred to in the Agreement:
   1. shall be payable in the currency stated on the invoice;
   2. are, subject to clause 13.5, non-cancellable and non-refundable;
   3. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) and billed amounts at the appropriate rate where applicable.
6. The Supplier shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional Subscriptions or Additional Services purchased pursuant to clause 3.4 at the start of each Renewal Period upon thirty (30) days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.

1. The Customer acknowledges that it has no Intellectual Property Rights in the Services or the Software. The Agreement does not grant the Customer any Intellectual Property Rights in the Software or the Services.
2. The Customer grants the Supplier a worldwide, perpetual, non-exclusive, fully paid-up, royalty-free, non-sublicensable and non-transferable license to use the Client Brand on or in its portfolio, website, social media, and/or business to business marketing materials for the sole purpose of marketing the Customer’s use of the Software.

1. Each party may be given access to confidential information from the other party in order to perform its obligations under the Agreement. A party’s confidential information shall not be deemed to include information that:
2. is or becomes publicly known other than through any act or omission of the receiving party;
3. was in the other party’s lawful possession before the disclosure;
4. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
5. is independently developed by the receiving party, which independent development can be shown by written evidence.
6. Subject to clause 11.4, each party shall hold the other’s confidential information in confidence and not make the other’s confidential information available to any third party, or use the other’s confidential information for any purpose other than the implementation of the Agreement.
7. Each party shall take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
8. A party may disclose confidential information to the extent such confidential information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s confidential information.
10. The Supplier acknowledges that the Customer Data is the confidential information of the Customer.
11. No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12. The above provisions of this clause 11 shall survive termination of the Agreement, however arising.

1. Except as expressly and specifically provided in the Agreement:
   1. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer and for conclusions drawn from such use. No information, advice or services obtained by the Customer from the Supplier or through the Software shall create any warranty not expressly stated in these terms. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
   2. 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 the Agreement; and
   3. the Services are provided to the Customer on an “as is” basis.
2. Nothing in the Agreement excludes the liability of the Supplier, for death or personal injury caused by the Supplier’s negligence; or for fraud or fraudulent misrepresentation.
3. Subject to clause 12.1 and clause 12.2:
   1. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, sales, business or revenue, loss of anticipated savings, loss of business opportunity or reputation, depletion of goodwill and/or similar losses, loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement, whether or not such loss or damage is foreseeable, foreseen or known; and
   2. the Supplier’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 Agreement shall be limited to the total Subscription Fees paid for the Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.
4. In the defence or settlement of any claim brought against the Supplier, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer beyond that provided at clause 13.5.
5. The Software interacts with social media websites and depends on the availability of those websites and the features and functionality they make available to the Supplier, which the Supplier does not control and may change without notice. If at any time a social media website ceases making some or all of its features or functionality available to the Supplier, or available to the Supplier on reasonable terms as determined by the Supplier in its sole discretion, the Software may no longer interact with those features or functionality and the Supplier will not be liable to the Customer or any third party for any resulting changes to the Software and/or Services. For the avoidance of doubt, this shall include circumstances where a social media website modifies its terms and conditions such that the interaction of the Software with some or all of its features and functionality becomes in breach of those terms and conditions. In the event of any such developments as envisaged by this clause the Supplier may also elect, at its sole discretion, to terminate the Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer beyond that provided at clause 13.5.
6. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer for any claims, actions, proceedings, losses, damages, expenses or costs (including without limitation court costs and legal fees) to the extent that they arise out of or in connection with:
   1. a modification of the Services by anyone other than the Supplier; or
   2. the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
   3. the Customer’s use of the Services after notice of an alleged or actual infringement of any Intellectual Property Rights or the Data Protection Legislation, whether from the Supplier or any appropriate authority.

1. This Agreement shall, unless otherwise terminated as provided in clause 13.4, commence on the Subscription Start Date and shall continue until all Subscriptions hereunder have expired or have been terminated in accordance with this clause 13. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
2. Except as otherwise specified in an Order Form, the Subscription(s) will commence on the Subscription Start Date, continue for the Initial Subscription Term and thereafter automatically renew for successive Renewal Periods, unless:
   1. either party notifies the other party of termination, in writing, providing notice of at least the Minimum Notice Period before the end of the Initial Subscription Term or any Renewal Period, in which case the Subscription(s) shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period notice period; or
   2. the Subscription(s) are otherwise terminated in accordance with the provisions of the Agreement.
3. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
   1. the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment;
   2. the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
   3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
   4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
   5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
   6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
   7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
   8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
   9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
   10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.3.3 to clause 13.3.9 (inclusive); or
   11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4. On termination of the Agreement for any reason:
   1. all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
   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; and
   3. 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.
5. In the event that the Subscription(s) are terminated part way through an Initial Subscription Term or Renewal Period and the Customer has paid for Services in advance which will no longer be supplied, no refunds will be given unless the Subscription(s) are being terminated under clause 13.4 or clause 13.5, in which case the Supplier shall refund the Customer a pro rata amount that reflects the unused portion of the Services.

Notwithstanding anything to the contrary in this Agreement, the Supplier may collect and use data derived from the Customer’s use of the Software for the purposes of monitoring, analysing and improving the performance, functionality and security of the Software and/or Services and developing its products and services, provided that such data is aggregated and/or anonymised so that it does not identify the Customer or any individual and does not constitute Personal Data under UK GDPR. The Supplier shall not use Customer Data or Customer Personal Data for such purposes in an identifiable form.

The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, 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 Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, 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 Customer is notified of such an event and its expected duration.

If there is an inconsistency between any of the provisions in this Agreement and the Order Form, the Order Form shall prevail.

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

No failure or delay by a party to exercise any right or remedy provided under the Agreement 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.

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

1. If any provision or part-provision of the Agreement 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 Agreement.
2. If any provision or part-provision of the Agreement is deemed deleted under clause 20.1 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.

1. This Agreement 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.
2. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

Nothing in the Agreement 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).

1. This Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, except that the Supplier (if a different entity to the Supplier) may enforce clause 8.1.1 and clause 9 of the Agreement.
2. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

1. Any notice required to be given under the Agreement shall be in writing and shall be:
   1. delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes; or
   2. sent by email to the other party at the e-mail address specified in the Order Form, or such other e-mail address as may have been notified by that party for such purposes.
2. Any notice shall be deemed to have been received:
   1. if delivered by hand, at the time the notice is left at the proper address (or if delivery is not in Normal Business Hours, when Normal Business Hours resume);
   2. if sent by pre-paid first class post or recorded delivery post, at the time at which it would have been delivered in the normal course of post; or
   3. if sent by email, at the time of transmission (or if this time falls outside Normal Business Hours, when Normal Business Hours resume).
3. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

This Agreement 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.

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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).

1. Each party shall comply with its respective obligations under the Data Protection Legislation. This Schedule 1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
2. Each party shall implement and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, taking into account the nature, scope, context and purposes of processing, the risks to the rights and freedoms of Data Subjects, the state of technological development and the cost of implementation, and as otherwise required by Article 32 of the UK GDPR.

1. In respect of any Personal Data processed by the Supplier as a processor on behalf of the Customer as controller (“Customer Personal Data”), the Supplier shall:
   1. process Customer Personal Data only on the documented instructions of the Customer, including with regard to transfers of Customer Personal Data to a third country or an international organisation, unless required to do so by Applicable Law. Where the Supplier is required by Applicable Law to process Customer Personal Data, the Supplier shall, to the extent permitted by Applicable Law, inform the Customer of that legal requirement before carrying out such processing;
   2. ensure that all persons authorised to process Customer Personal Data are subject to a duty of confidentiality in respect of such Personal Data;
   3. taking into account the nature of the processing and the information available to the Supplier, implement the technical and organisational measures required under Article 32 of the UK GDPR;
   4. 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 Data Subjects’ rights under Chapter III of the UK GDPR;
   5. taking into account the nature of the processing and the information available to the Supplier, assist the Customer in ensuring compliance with the Customer’s obligations under Articles 32 to 36 of the UK GDPR, including in relation to the security of processing, notification and communication of Personal Data Breaches, Data Protection Impact Assessments and prior consultation with the Information Commissioner’s Office;
   6. notify the Customer without undue delay, and in any event as soon as reasonably practicable, after becoming aware of a Personal Data Breach affecting Customer Personal Data;
   7. at the written direction of the Customer, delete or return all Customer Personal Data to the Customer at the end of the provision of the Services relating to processing, and delete existing copies unless Applicable Law requires continued storage of that Customer Personal Data. Where the Supplier is required to retain Customer Personal Data under Applicable Law, it shall keep such Personal Data confidential and shall process it only for the purpose and period required by such Applicable Law;
   8. make available to the Customer all information reasonably necessary to demonstrate compliance with the obligations set out in Article 28 of the UK GDPR and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer, subject to the provisions of paragraph 3 of this Schedule 1; and
   9. immediately inform the Customer if, in the Supplier’s reasonable opinion, an instruction from the Customer infringes the UK GDPR or other applicable Data Protection Legislation.
2. The Supplier shall not process Customer Personal Data for its own purposes or for any purpose other than the provision of the Services and compliance with the Customer’s documented instructions, except as required by Applicable Law.

1. In relation to the Customer’s audit rights under paragraph 2.1.8:
   1. the Customer shall only exercise such audit rights where reasonably necessary to demonstrate compliance with Article 28 of the UK GDPR or where the Customer has reasonable grounds to suspect a material breach of the Supplier’s obligations under this Schedule 1;
   2. except where an audit is required by the Information Commissioner’s Office or another competent supervisory authority, or is reasonably required following a Personal Data Breach, the Customer shall provide at least fourteen (14) days’ prior written notice of any intended audit;
   3. audits shall be conducted during the Supplier’s normal business hours and in a manner which does not unreasonably disrupt the Supplier’s business;
   4. the Customer shall use reasonable endeavours to ensure that any auditor appointed by it is appropriately qualified and independent and is bound by confidentiality obligations;
   5. the scope of any audit shall be limited to the Supplier’s systems, records and activities directly relevant to the processing of Customer Personal Data under the Agreement; and
   6. the Customer shall bear its own costs of conducting an audit, and the Supplier shall provide reasonable assistance at no additional charge where the audit is conducted as part of the Customer’s exercise of its rights under Article 28 of the UK GDPR. Where the Supplier is required to provide material additional assistance outside the scope of its ordinary obligations under this Schedule 1, the Supplier may charge the Customer its reasonable costs, provided that such costs are agreed in advance.

1. Without prejudice to its other obligations under the Data Protection Legislation, the Customer shall:
   1. ensure that it has a valid legal basis under Article 6 of the UK GDPR for the processing of Customer Personal Data and, where applicable, a valid condition under Article 9 of the UK GDPR;
   2. provide all necessary privacy notices and other information to Data Subjects as required by the Data Protection Legislation;
   3. ensure that its instructions to the Supplier comply with the Data Protection Legislation; and
   4. ensure that it has all necessary rights, permissions and consents to disclose Customer Personal Data to the Supplier and to authorise the Supplier to process that Personal Data in accordance with this Agreement.
2. Where the Customer uses the Services to identify, track, monitor or otherwise process information relating to individuals through their social media activity, the Customer shall ensure that such processing is carried out lawfully and transparently and that all applicable requirements of the Data Protection Legislation, including in relation to lawful bases, transparency, privacy notices and Data Subject rights, are satisfied.
3. The Supplier shall provide reasonable assistance to the Customer in relation to the matters described in paragraph 4.2 where such assistance is within the Supplier’s reasonable control and relates to the Services.
4. The Customer shall remain responsible for determining the purposes and means of the processing of Customer Personal Data and for ensuring that the Customer’s instructions to the Supplier comply with the Data Protection Legislation.

1. The Supplier shall not transfer Customer Personal Data outside the United Kingdom except in accordance with Chapter V of the UK GDPR.
2. Where Customer Personal Data is transferred to a country or territory outside the United Kingdom which has not been recognised as providing an adequate level of protection under the Data Protection Legislation, the Supplier shall ensure that an appropriate transfer mechanism and appropriate safeguards are in place, including, where applicable, the UK International Data Transfer Agreement or UK Addendum to the EU Standard Contractual Clauses, together with any applicable transfer risk assessment or other measures required by the Data Protection Legislation.

1. The Customer hereby provides the Supplier with general written authorisation to appoint sub-processors for the processing of Customer Personal Data, provided that:
   1. the Supplier shall maintain a list of its authorised sub-processors and make that list available to the Customer on request;
   2. the Supplier shall notify the Customer in writing of any intended addition or replacement of a sub-processor which will process Customer Personal Data, giving the Customer a reasonable opportunity to object to such change;
   3. where the Customer reasonably objects to the appointment of a new sub-processor on data protection grounds, the parties shall discuss in good faith an appropriate solution; and
   4. the Supplier shall enter into a written agreement with each sub-processor imposing data protection obligations which provide a level of protection for Customer Personal Data equivalent to those imposed on the Supplier under this Schedule 1 and Article 28 of the UK GDPR.
2. The Supplier shall remain responsible to the Customer for the performance of each sub-processor’s obligations in relation to the processing of Customer Personal Data.
3. The Customer authorises the Supplier to appoint the following sub-processors as at the Effective Date:
   1. Google LLC and its relevant affiliates, including Google Ireland Limited and Google Asia Pacific Pte. Ltd., as applicable;
   2. HostGator.com LLC; and
   3. any company which is a separate legal entity from the Supplier, to the extent such company processes Customer Personal Data on behalf of the Customer.
4. The Supplier shall ensure that the sub-processors listed in paragraph 6.3 are subject to written data protection obligations consistent with this Schedule 1.

1. Schedule 2 sets out the subject matter and duration of the processing, the nature and purpose of the processing, the types of Personal Data and the categories of Data Subjects in accordance with Article 28(3) of the UK GDPR.

1. Where the Controller receives a request from a Data Subject to exercise their right to erasure of Personal Data under Article 17 of the UK GDPR (the “Right to Erasure”), the Controller shall be responsible for determining whether the request is valid and whether the conditions for erasure are satisfied.
2. Where the Controller instructs the Processor to erase Personal Data pursuant to a valid Right to Erasure request, the Processor shall, taking into account the nature of the Processing and the information available to it:
   1. assist the Controller in responding to and complying with the request;
   2. without undue delay, locate and erase the relevant Personal Data from its systems and records, to the extent required by the Controller and permitted by applicable Data Protection Legislation;
   3. where the relevant Personal Data has been disclosed to any Sub-processor, instruct the relevant Sub-processor to erase such Personal Data, unless retention is required by applicable law;
   4. notify the Controller without undue delay of any circumstances that prevent or materially delay the Processor from complying with the Controller’s instruction; and
   5. confirm to the Controller when the requested erasure has been completed the Processor shall not independently determine that Personal Data should be erased where the Processor is acting solely on behalf of the Controller, unless required to do so by applicable Data Protection Legislation.
3. Where Personal Data is retained in back-up systems and cannot reasonably be erased immediately, the Processor shall ensure that such Personal Data is put beyond use and is securely deleted in accordance with its applicable back-up and retention procedures.
4. The Processor shall, where reasonably requested by the Controller, provide reasonable assistance to enable the Controller to comply with its obligations under Article 17 of the UK GDPR, including in relation to identifying relevant Personal Data, implementing erasure and providing information concerning any applicable retention requirements or exemptions.

The subject matter, nature and purpose of the processing of Personal Data by the Supplier is the provision of the Services to the Customer under the Agreement, including the provision, operation, administration and support of the Software and any related creator, social media, campaign, reporting and analytics services.

The duration of the processing shall correspond to the term of the Agreement, subject to any continued processing required by Applicable Law and the Supplier’s obligations under paragraph 2.1.7 of Schedule 1.

The Personal Data processed may include:

1. Identity Data

   First names, last names, usernames and similar identifiers.

2. Contact Data

   Addresses, telephone numbers and email addresses.

3. Social Media Profile Data

   Social media handles, profile biographies or descriptions, age, gender, country or territory, applicable industry categories, publicly available social media posts including photographs and videos, number of posts, number of followers or subscribers, and metrics relating to profile or post views and engagement.

4. Transaction Data

   Orders, transactions and payment information relating to the Services.

5. Financial Data

   Bank account information and, where processed by the Supplier, payment card or other financial information.

6. Technical Data

   Information regarding User Logins’ use of the Services, including login dates and times, usernames, IP addresses, browser type and version, operating system and platform, device information and similar technical identifiers.

7. Communications Data

   Information contained in communications between User Logins and the Supplier and information regarding communication preferences.

The categories of Data Subjects may include:

1. Customer employees, including casual or temporary workers;
2. Customer contractors and subcontractors;
3. User Logins of the Services;
4. creators and influencers;
5. social media users with public profiles; and
6. other individuals whose Personal Data is included in Customer Personal Data and processed by the Supplier in connection with the Services.