These terms and conditions together with the applicable ordering document (“order”) constitute a legal agreement which contains the entire agreement between the customer detailed in the relevant order (“customer” or “you”) and downforce technologies limited detailed in the relevant order (“company,” “downforce technologies” or “us“), with respect to the subject matter described herein (together the “agreement”). company and customer hereby agree as follows:
- Scope of agreement.
In consideration of the payment of any fees as detailed in the Order (“Fees”), Downforce Technologies shall provide the services to You as specified in the relevant Order (the “Services.) You acknowledge and accept that the performance of the Services may be conditional upon the timely performance of Your obligations, which You shall perform in accordance with the Order. If the Order includes access to the Company’s proprietary Software, You are granted a non-exclusive, non-transferable, non-sub-licensable right to access and use the Company software as a service solution specified in the relevant Order (the “Software“), by Your authorised employees, agents and contractors (“Users”) solely in respect of the Services and in connection with Your internal business purposes , for the Term (as defined in clause 2 below). You will be responsible for Your compliance and Users’ compliance with this Agreement. - Term and Termination.
This Agreement is effective from the effective date detailed in the relevant Order (“Effective Date”) for the period as agreed in writing between the parties in the Order (the “Term“), unless terminated earlier as set forth herein. Customer may terminate this agreement if the Company commits a material breach of this Agreement or any current Order, which breach is irremediable or (if such breach is remediable) fails to remedy such breach within 30 days after written notice to do so. However, this Agreement will terminate automatically if You fail to comply with any of the limitations or other requirements described herein. At the end of the Term or upon the request of Company, whichever is earlier, You will cease to access the Software and/or the Services as applicable, and make no further use whatsoever of the Software and/or the Services, except to the extent that may be permitted under any subsequent agreements between You and Company. You will promptly return to Company or at Company’s request permanently erase or destroy from all of Your devices and systems any of Company’s confidential information as detailed in clause 8 herein. - Intellectual Property Rights.
You acknowledge that all right, title, and interest in and to the Software and Services, including associated intellectual property rights arising from any Deliverables produced by the Software or Services under this Agreement, are owned by and shall remain with Company and its licensors. This Agreement does not convey to You any rights or interest in or to the Software or Services, but only a limited right of use in accordance with the terms of this Agreement. Subject to the payment of the Fees and the restrictions contained in this Agreement, You are hereby granted a perpetual, non-exclusive, non-transferable, non-sub-licensable right to use, copy and modify the Deliverables produced by the Services for your internal business purposes. Except for the rights expressly granted by Downforce Technologies to You under this Agreement and the Order, Downforce Technologies (and its suppliers and/or contractors, if any) reserves all rights, title and interest in the Software and the Services including any modifications, improvements or alterations made to the Software and Services during the Term. - Restrictions.
You will not: (i) use the Software or Services in a live product environment; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties), (iii) license, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make the Software, Services or any Deliverables produced by the Software or Services available to anyone other than the Users, (iv) use the Software or Services to store or transmit infringing, obscene, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (v) use the Software or the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or (vi) copy, modify, transmit, distribute, frame or mirror any Software in any form or media or by any means, (vii) use the Software or Services to store or transmit malicious code or in any way that is unlawful or fraudulent, (viii) interfere with, damage or disrupt the integrity or performance of the Software or Services or third party data, (ix) attempt to gain or assist third parties to gain unauthorised access to the Software or Services or their related systems or networks, or (x) access the Software or Services for purposes outside those specified in the Order, or for any other benchmarking or competitive purposes. - Payment.
Company shall invoice you the Fees in accordance with the Order. You agree to pay the Fees for within 30 days of receipt of Company’s invoice to you for the same. Fees for ongoing monitoring will be invoiced yearly on the anniversary of the Effective Date. Fees for ongoing monitoring will increase annually based on the UK Consumer Price Index (“UK CPI”). As used herein, the UK CPI shall mean the United Kingdom’s Consumer Price Index or the successor of such index. The relevant period for calculating the UK CPI shall be one year prior to the current most recent anniversary of the Effective Date. - Exclusion of Warranties.
The Software and Services are provided to Customer “as is”, and any use by Customer of the Software and Services during the term will be at Customer’s sole risk. Company makes no warranties relating to the Software or Services and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, or fitness for a particular purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law. - Limitation of Liability.
Company’s cumulative liability to You or any other party for any loss or damages resulting from any claim arising out of or relating to this Agreement, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the Fees received by Company in the previous 12-month period. In no event shall Company be liable for any indirect, incidental, consequential, special, or exemplary damages or loss of profits or loss or corruption of data, even if You advised the Company of the possibility of such damages. The limitations of liability in this clause 7 shall apply to the fullest extent permissible at law but do not limit any liabilities which may not be excluded by law (including death or personal injury caused by negligence, fraud or fraudulent misrepresentation). - Confidentiality.
Each Party undertakes that it shall not at any time disclose to any person or use any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, or such other information which ought reasonably to be regarded as confidential, except as permitted herein. For the avoidance of doubt, any data which You upload to the Software or provide to Us in order to perform the Services (including any specific customer requirements) shall be deemed to be Your confidential information. This clause 8 shall survive termination of this Agreement for as long as information shared under this Agreement is reasonably considered confidential by the disclosing party. Information shall not be deemed to be confidential if such information (i) is, or becomes, publicly known other than through a breach of this Agreement, (ii) is in the possession of the receiving party prior to receipt thereof from the other party, (iii) is independently developed by the other party, (iv) is lawfully disclosed to the receiving party by a third party who is not subject to a confidentiality agreement or obligation relating to such disclosure or (v) is aggregated and anonymised by Us so that it cannot be connected to You. Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisors who need to know such information for the purpose of exercising that party’s rights or carrying out its obligations under this Agreement (“Permitted Purpose”), provided that each party shall ensure such persons comply with this clause 8 and shall be liable for any failure of such persons to do so; or (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use the other party’s confidential information for any purpose other than the Permitted Purpose. - Data Protection.
You shall use reasonable endeavours to ensure that any data which you upload to the Software or provide to Us for the performance of the Services is in an anonymised and/or aggregated form and shall not contain any personal data. You shall indemnify and hold Us harmless from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claims due to a breach of this clause or that the processing and use of any such data in accordance with this Agreement infringes or misappropriates any third party rights or breaches any data protection legislation. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of any data You provide under this Agreement. To the extent any data you upload to the Software or provide to Us contains personal data or can be combined with other publicly available data or data available to Us so that it becomes personal data then the Schedule available from us on request shall apply and both parties agree to comply with the terms of the Schedule. - Onward Use and Attribution.
All analyses, reports and Deliverables provided by Downforce Technologies which Customer shares with any third parties, regardless of whether such disclosure is safeguarded by appropriate confidentiality provisions between Customer and the third party, will be agreed with Downforce Technologies in advance of any such disclosure and Downforce Technologies’ contribution shall be attributed. This includes integrating the information provided by Downforce Technologies into any reports or combining such information with other results or analyses. - Third Party Collaboration and/or Engagement.
The parties may collaborate with other third parties in connection with the Order provided that any such collaboration shall be agreed in advance by the parties and the scope of such collaboration shall be outlined in writing. - Publicity.
Downforce Technologies and Customer will jointly agree and implement the public presentation of the Services. However, Downforce Technologies will be authorised to promote its relationship with Customer and any materials generated for Customer, absent any Confidential Information supplied by Customer, on its website, social media and other platform for the purposes of promoting Downforce Technologies. - General
- This Agreement does not create any agency, partnership or joint venture relationship.
- Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control including, but not limited to: (i) fire, flood, explosion, earthquake, storm or other natural disaster or extreme adverse weather conditions; (ii) terrorist attack, civil commotion, riots or pandemic; (iii) collapse of building structures or failure of plant, machinery, computers or utility service.
- Neither party may without the other party’s prior written consent, assign, novate, subcontract or otherwise transfer any of its rights or obligations under this Agreement.
- 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.
- This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute a single instrument.
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
- No failure or delay by either party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver, prevent or restrict the future 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.
- If any provision or part-provision of this 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 this Agreement.
- No one other than a party to this Agreement shall have any right to enforce any of its terms.
- This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation 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 such dispute or claim.