Subscription Agreement

Effective date: 01 June 2020

THE CONTRACT is effective on the commencement date as set out in or in accordance with the Order Form (as defined below) (“Commencement Date”) and is entered into by and between GYANA LIMITED, a company registered in England and Wales(registered number 09609115), whose registered office is C/O WeWork, 8Devonshire Square, London, United Kingdom, EC2M 4PL (“Gyana”) and the entity identified as the customer in the Order Form(“Customer”) (each a “Party”, together the “Parties”).

BACKGROUND


(A)            Gyana is a data science company that provides tools for processing data.
(B)            Customer wishes to appoint Gyana to provide the Services (as defined below) from time-to-time on the terms of this Contract (as defined below).

AGREED TERMS

1.          INTERPRETATION

1.1    The following definitions shall apply to this Contract:


Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Authorised Users: those employees and independent contractors (being natural persons) of the Customer who are authorised by the Customer in accordance with the Documentation to access and use the Services and the Documentation pursuant to the Customer’s purchase of User Subscriptions under this Contract.

Beta Services: Gyana services or functionality that may be made available to the Customer to try at no additional charge which are clearly designated as beta, pilot, limited release, developer preview and/or non-production.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Business Hours: 9:00am to 5:00pm on a Business Day.

Contract: the Framework Terms together with all Order Forms.
control: has the meaning given in section 1124 of the Corporation Tax Act 2010.

Customer Data: the data, including any personal data inputted by the Customer, Authorised Users, or Gyana on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

Data Protection Legislation: Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) including the recitals (“GDPR”) and any equivalent or implementing legislation; and all other applicable laws (including judgments of any relevant court of law) and regulations relating to the processing of personal data, data privacy, electronic communications, marketing and/or data security, in each case as from time-to-time in force and as from time-to-time amended, extended, consolidated, re-enacted, replaced, superseded or otherwise converted, succeeded, modified or incorporated into law and all orders, regulations, statutes, instruments and/or other subordinate legislation (including the provisions of the Data Protection Act 2018) made under any of the above in any jurisdiction from time-to-time, in each case interpreted in accordance with the DP Guidance, and Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data insofar as such Directive is referred to in any other element of this definition of Data Protection Legislation.

DP Guidance: any and all guidelines, recommendations, best practice, opinions, directions, decisions, codes of practice and codes of conduct issued, adopted or approved by the European Commission, the Article 29 Working Party, the European Data Protection Board, the UK’s Information Commissioner’s Office and/or any other supervisory authority or data protection authority from time-to-time (in each case to the extent legally binding) in relation to the processing of personal data, data privacy, electronic communications, marketing and/or data security;

DP Sub-processor: has the meaning given in Clause 9.11;

Documentation: the documentation containing further information relating to the Services as made available to the Customer on Gyana’s website from time-to-time.

Flow-Down Services: where indicated on each Order Form, the third-party services and where applicable Flow-Down Software provided as part of the Services subject to the terms of this Contract including the Flow-Down Terms.

Flow-Down Software: where indicated on each Order Form, the third-party software provided as part of the Services subject to the terms of this Contract including the Flow-Down Terms.

Flow-Down Terms: where applicable, the additional terms and conditions as provided by Gyana to Customer from time-to-time.

Free Services: the free cloud platform services provided by Gyana to the Customer as identified in the Order Form (including all data provided via the aforementioned platform) and described in the Documentation

Framework Terms: the terms and conditions set out in this document (including the Schedules).

Gyana Support Policy: Gyana’s policy for providing support in relation to the Services as may be notified to the Customer from time-to-time.
Indemnified Software: the Software excluding any Flow-Down Software and any Flow-Down Services.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights and all similar or equivalent rights or forms of protection in any part of the world, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights.

Normal Support Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Order Form: means the document entitled order form in the legal section of the Customer’s account management page on Gyana’s website;

Parties: Gyana and the Customer, and the term “Party” shall be construed accordingly.
“Personal Data” means the personal data to be processed by Gyana in connection with this Contract;

Services: the cloud platform subscription services provided by Gyana to the Customer as identified in each Order Form (including all data provided via the aforementioned platform) and described in the Documentation including any Flow-Down Services or Free Services but excluding the Beta Services.

Software: the online software applications provided by Gyana as part of the Services including any Flow-Down Software and any Flow-Down Services.

Subscription Fees: the subscription fees payable by the Customer to Gyana for the User Subscriptions, as set out in each Order Form.
Template Order Form: the template Order Form set out in Schedule 1.

User Subscriptions: the number and, where stated, the type of user subscriptions purchased by the Customer pursuant to this Contract and set out in each Order Form which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Contract.

VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

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.

1.2 Clause headings shall not affect the interpretation of this Contract.

1.3 Unless the context otherwise requires:
         1.3.1       words in the singular shall include the plural and in the plural shall include the singular;
        1.3.2       any reference to any statute, enactment, order, regulation or other similar instrument will be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof;
          1.3.3       a reference to one gender shall include a reference to the other genders; and
          1.3.4       any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4 In the case of conflict or ambiguity, the order of precedence for this Contract will be as follows:
          1.4.1       the Order Form(s) (including, for the avoidance of doubt, each Order Form’s Annex);
          1.4.2      the main body of the Framework Terms;
          1.4.3      the Schedules to the Framework Terms;
          1.4.4      any documents attached to this Contact (other than each Order Form and the Framework Terms);
          1.4.5      any documents referred to in this Contract (other than each Order Form and the Framework Terms);
          1.4.6      any document incorporated by reference into an Order Form.

1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.6 References to Clauses are to the clauses of these Framework Terms, references to Paragraphs are to paragraphs of the Schedules to these Framework Terms and references to Sections are to sections of each Order Form.

2. APPOINTMENT

2.1 In consideration of the sum of £1 (receipt of which Gyana expressly acknowledges), the Parties agree to enter into this Contract.

2.2 This Contract shall commence on the Commencement Date and shall, unless terminated earlier in accordance with its terms, shall continue until terminated by either Party on 30 days’ prior written notice to the other Party.

2.3 If no extension period is agreed, the Contract shall terminate as and when the Services under all the current Order Forms have been completed.

2.4 These Framework Terms are a framework agreement under which the Customer can request, and Gyana may provide, the Services from time to time.  All Services shall be provided in accordance with the main body of these Framework Terms, the Schedules to these Framework Terms and the relevant Order Form.

2.5 Gyana shall, on a non-exclusive basis, use its reasonable endeavours to provide the Services to the Customer in accordance with the relevant Order Form in all material respects.  There is no obligation on the part of:
        2.5.1      the Customer to request Services;
        2.5.2      Gyana to agree to provide the Services; and
        2.5.3      either Party to enter into any Order Form.

2.6 Free Services are provided on an ”AS IS” basis. To the maximum extent permitted by applicable law, Gyana makes no warranties or guarantees either express or implied arising by law or otherwise in relation to the Free Services.

3. ORDER FORMS

3.1 If the Customer requires Gyana to undertake any Services, it shall discuss its requirements with Gyana.

3.2 As soon as reasonably practicable following these discussions, Gyana shall submit to the Customer in writing for approval a draft Order Form, using the Template Order Form.

3.3 The Customer shall, as soon as practicable following receipt of the draft Order Form, notify Gyana in writing whether the Customer:
         3.3.1      approves the  draft Order Form;
         3.3.2      requires any modifications to the draft Order Form (giving details); or
         3.3.3      rejects the draft Order Form.

3.4 The Parties shall work together to make any modifications to the draft Order Form requested by the Customer as soon as reasonably possible following receipt of the Customer’s comments.  Gyana shall then resubmit the revised draft Order Form to Customer for approval in accordance with this Clause.

3.5 Once a draft Order Form has been approved by Gyana and the Customer, each Party shall sign it and it shall then become an Order Form for the purposes of this Contract, binding on both Parties.

3.6 Either Party may request a change to an Order Form at any time prior to expiry or termination of that Order Form.  Any such change shall only be binding with the prior written consent of both parties.

4. SERVICES

4.1 Gyana shall use reasonable endeavours to provide the Services to Customer in accordance with this Contract and, in particular, the terms of the relevant Order Form in all material respects.  Gyana may amend the Documentation in its sole and absolute discretion from time-to-time.

4.2 Gyana shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
        4.2.1      subject to Clause 4.2.3, planned maintenance of which Gyana shall provide advance electronic notice to the Customer;
        4.2.2      subject to Clause 4.2.3, unscheduled maintenance performed outside the planned maintenance window referred to in Clause 4.2.1 provided that Gyana has used reasonable endeavours to give the Customer at least 1 hours’ notice of such unscheduled maintenance; and
        4.2.3      planned and/or unscheduled maintenance in respect of any Flow-Down Services.

4.3 Gyana will, as part of the Services and at no additional cost to the Customer, provide the Customer with Gyana’s standard customer support services during Normal Support Hours in accordance with the Gyana Support Policy in effect at the time that the Services are provided.  Gyana may amend the Gyana Support Policy in its sole and absolute discretion from time-to-time.

4.4 The Beta Services are provided on an ”AS IS” basis and are strictly for test purposes only. To the maximum extent permitted by applicable law, Gyana makes no warranties or guarantees either express or implied arising by law or otherwise in relation to the Beta Services.

5. USER SUBSCRIPTIONS

5.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 6.3 and Clause 12, the restrictions set out in this Clause 5 and the other terms and conditions of this Contract, Gyana grants to the Customer a limited non-exclusive, non-transferable, revocable right to permit the Authorised Users to use the Services and the Documentation during the term of the relevant Order Form for the Customer’s internal business purposes only.

5.2 In relation to the Authorised Users, the Customer undertakes that:
       5.2.1      it shall only authorise users to access and use the Services and the Documentation (i) in accordance with the Documentation; and (ii) who fall within the type(s) of User Subscription that have been purchased by the Customer;
       5.2.2      the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased (as set out in each Order Form).  The Customer may purchase additional User Subscriptions in accordance with Clause 6;
       5.2.3      it will not allow or suffer any User Subscription 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; and

5.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to Gyana together with any other information Gyana reasonably requires to verify Customer’s compliance with the terms of this Contract within 5 Business Days of Gyana’s written request at any time or times.

5.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, age, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property.  Gyana reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.

5.4 The Customer shall not:
      5.4.1      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 this Contract 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 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      5.4.2      access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
      5.4.3      use the Services and/or Documentation to provide services to third parties; or
      5.4.4      license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      5.4.5      attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 5.

5.5 The Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Gyana.

5.6 The rights provided under this Clause 5 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer.  Notwithstanding the foregoing, the Customer’s Affiliates may receive the benefit of the Services under a particular Order Form if that Order Form expressly permits this provided that:
      5.6.1      each such Affiliate shall be bound by the terms of this Contract with respect to its receipt of the Services;
      5.6.2      in respect of Gyana’s losses caused by the Customer’s Affiliates, Gyana shall be entitled to bring a claim against the Customer, as if such losses had been caused by the Customer itself;
      5.6.3      subject to clause 7, in respect of losses caused by Gyana to the Customer’s Affiliates, the Customer shall be entitled to bring a claim against Gyana, as if such losses had been suffered by the Customer itself; and
      5.6.4      in no event will the Customer’s Affiliates have any right of action against Gyana under or in connection with this Contract.

5.7 The Customer shall ensure that the Authorised Users use the Services and the Documentation in accordance with this Contract and any end-user terms put in place between Gyana and each of the Authorised Users.  The Customer shall be responsible for any Authorised User’s breach of the aforementioned terms.

6. ADDITIONAL USER SUBSCRIPTIONS

6.1 Subject to Clause 6.2 and Clause 6.3, the Customer may, from time-to-time during the term of any Order Form, purchase additional User Subscriptions under that Order Form and Gyana shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Contract.

6.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Gyana in writing. Gyana shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.

6.3 If Gyana approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Gyana’s invoice, pay to Gyana the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the term of an Order Form, such fees shall be pro-rated for the remainder of that term.  The relevant Order Form(s) shall be updated by the Parties to reflect any additional User Subscriptions purchased in accordance with this Clause 6.

7. LIMITS OF LIABILITY

7.1 Nothing in this Contract will exclude, limit or restrict Gyana’s liability for:
       7.1.1       death or personal injury caused by the negligence of Gyana;
      7.1.2      fraud or fraudulent misrepresentation; or
      7.1.3      any other liability which may not be limited or excluded by law.

7.2 Subject to Clause 7.1, Gyana shall not be liable to the Customer for any of the following loss or damage, in each case arising out of or connection with this Contract (including without limitation as a result of breach of contract, negligence or any other tort, under statute or otherwise), and regardless of whether Gyana knew or had reason to know of the possibility of the loss, injury or damage in question:
      7.2.1      any loss (whether direct or indirect) of revenue or profits;
      7.2.2      any loss (whether direct or indirect) of anticipated savings;
      7.2.3      any loss (whether direct or indirect) of goodwill or injury to reputation;
      7.2.4      any loss (whether direct or indirect) of business opportunity;
      7.2.5      any loss (whether direct or indirect) of or corruption to data, software or information; or
      7.2.6      indirect or consequential loss or damage.

7.3 Subject to Clauses 7.1 and 7.2 the aggregate liability of Gyana (including its respective partners, officers, employees, contractors, directors, sub-contractors and agents) under or in connection with this Contract whether in contract, tort (including negligence) or otherwise shall be limited to the greater of:
      7.3.1      two-hundred pounds sterling (£200); and
      7.3.2      100% of the total Subscription Fees paid for the Services by the Customer to Gyana during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12-months had elapsed from the Commencement Date, during that shorter period.

7.4 The Customer shall be liable for and shall indemnify Gyana against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by Gyana which arise directly or indirectly out of or in connection with any Authorised Users access to or use of the Services and/or Documentation other than as expressly permitted by this Contract.

8. CONSUMER DATA

8.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

8.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Gyana to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Gyana in accordance with the archiving procedure described in its back-up policy.

8.3 With the exception of data generated by Gyana and which is not transmitted to the Customer other than via the Services the Customer acknowledges that it should not rely on the Services to store the Customer Data and the Customer should separately back-up the Customer Data.

9. DATA PROTECTION

9.1 As at the Commencement Date:
      9.1.1      the Parties do not anticipate any personal data being transferred to the Customer through the Customer’s use of the Software; and
      9.1.2      the Parties anticipate that the Customer will transfer personal data to Gyana for the purpose of enabling Gyana to provide access to the Software to the Customer including, in particular, its Authorised Users.  The remainder of this Clause 9 relates to the processing of this Customer personal data by Gyana.

9.2 In this Contract, ”controller”, “processor”, “personal data”, “personal data breach”, ”data subject”, and “processing” have the meanings given to these terms in the GDPR interpreted in accordance with the relevant DP Guidance.

9.3 Each of the Parties acknowledge and agree that for the purposes of the Data Protection Legislation:
9.3.1 the Customer is the controller; and
9.3.2 Gyana is the processor in relation to the processing by Gyana of any Personal Data.

9.4 References to sub-contracting the processing of personal data include sub-contracting the performance of any Services which may involve the processing of personal data.

9.5 The types of Personal Data, categories of data subject to whom it relates, and the subject matter, duration, nature and purposes of the processing to be carried out under this Contract are set out in Annex A to each Order Form.

9.6 If the Customer wishes Gyana to process different data and/or for different purposes, it will promptly notify Gyana of the proposed changes to this  Contract and will at the same time notify Gyana in writing of any amendment to Annex A to each Order Form required to ensure that it remains accurate, up-to-date and complete. If Gyana approves the proposed amendment, the then current version of Annex A to each Order Form will be replaced by the amended version as approved by Gyana. If Gyana and the Customer do not agree the proposed amendment, Gyana will continue to process personal data in accordance with the then current version of Annex A to each Order Form.

9.7 Gyana will:
      9.7.1      in relation to the processing of Personal Data, comply with its obligations under the Data Protection Legislation and ensure the protection of the rights of data subjects;
      9.7.2      process (and will procure that its personnel will process) the Personal Data (including the transfer to an international organisation or a country (other than the United Kingdom) outside the European Union) only:
              (a) in accordance with the Customer’s written instructions from time-to-time; or
              (b) as otherwise required by law (subject to Gyana first notifying the Customer of the relevant legal requirement unless such notification is itself prohibited by law on important grounds of public interest)
and only to the extent and in such a manner as is necessary for Gyana to provide the Services and to perform its other obligations under this Contract in accordance with this Contract and not for any other purpose; and
       9.7.3      immediately notify the Customer if Gyana (or any of its sub-contractors) believes any of the Customer’s instructions relating to processing Personal Data breaches any Data Protection Legislation;
      9.7.4      only disclose the Personal Data to, and ensure that access to the Personal Data is limited to, those of its personnel who are bound by confidentiality obligations in relation to the Personal Data;
      9.7.5      not transfer any Personal Data to an international organisation or any country (other than the United Kingdom) outside the European Union without the express prior written consent of the Customer;
       9.7.6      implement appropriate technical and organisational measures to ensure a level of security appropriate to the data security risks presented by processing the Personal Data, including the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.  
      9.7.7      when Gyana ceases to provide Services relating to processing pursuant to this Contract:
             (a) at the Customer’s option, delete or return to the Customer all Customer’s personal data; and

               (b) delete all copies of the Personal Data except insofar as Gyana is required by law to continue to store such copies.

9.8 Gyana will take appropriate technical and organisational measures to assist the Customer in fulfilling the Customer’s obligations to respond to any request by any data subject to exercise any data subject right under articles 12-23 inclusive of the GDPR or any equivalent or implementing legislation, in each case only to the extent that the data subject’s request relates to the processing of Personal Data by Gyana pursuant to this Contract.

9.9 Gyana will at the Customer’s request assist the Customer in complying with the Customer’s obligations under articles 32-36 inclusive of the GDPR or any equivalent or implementing legislation, in each case only to the extent that the Customer’s request relates to the processing of Personal Data by Gyana pursuant to this Contract.

9.10 Gyana will at the Customer’s request, make available to the Customer all information required to demonstrate:
      9.10.1        Gyana’s compliance with this Contract;
      9.10.2       the compliance by each of its DP Sub-processors with the agreement between Gyana and such DP Sub-processor referred to in Clause 9.13 and
       9.10.3       the Customer’s compliance with its obligations under this Contract and/or with the Data Protection Legislation in relation to the engagement of a processor; and
        9.10.4      on reasonable notice during business hours allow the Customer, its statutory or regulatory auditors, and in each case their authorised agents, access to the information referred to in Clause

9.10 as the Customer may require in order to verify Gyana’s compliance with its obligations in relation to data processing under this Contract. Unless the Customer has reasonable grounds to believe Gyana has committed a material breach of this Clause 9, the Customer may not exercise its audit right more than once in any twelve-month period. The Customer shall use all reasonable endeavours to ensure that the conduct of any audit by the Customer or its authorised agents does not unreasonably disrupt Gyana or its business. Any audit by the Customer or its authorised agents will be limited to an audit of the Personal Data and the processes relating to the Personal Data and will not include any information relating to any other customer of Gyana or any other third party (other than a DP Sub-processor).

9.11 The Customer acknowledges and agrees that Gyana may use third parties (each a “DP Sub-processor”) to process any personal data on behalf of the Customer pursuant to this Contract. Gyana will not appoint or replace any DP Sub-processor without giving the Customer not less than thirty days’ prior notice of the proposed appointment of any DP Sub-processor. The Customer must notify Gyana of any objection to such appointment within five days’ after receiving notice of the proposed appointment from Gyana; if the Customer’s objection to the proposed appointment is reasonable, Gyana will re-arrange the processing arrangements so that proposed appointee is not used to process personal data or make such other amendment to the terms of this Contract as the parties, acting reasonably and in good faith) agree is appropriate to reflect the change in the sub-processing arrangements.

9.12 Gyana will ensure that the DP Sub-processors and any proposed replacement or additional sub-processor provides sufficient guarantees to implement appropriate technical and organisation measures in such a way that its processing will comply with the Data Protection Legislation.

9.13 If Gyana sub-contracts the processing of any personal data to any third party on behalf (directly or indirectly) of the Customer (including the DP Sub-processors) Gyana will enter into a written agreement with such DP Sub-processor and include in that agreement at least:
      9.13.1      obligations on the DP Sub-processor which are equivalent to the obligations on Gyana in relation to Personal Data under this Contract;
      9.13.2      obligations on the DP Sub-processor not to sub-contract the processing of any personal data on behalf (directly or indirectly) of the Customer to any third party without obtaining the prior written consent of each of Gyana and the Customer; and
      9.13.3      provisions in favour of the Customer equivalent to those in this Clause 9.

9.14 If Gyana sub-contracts the processing of any personal data on behalf (directly or indirectly) of the Customer, Gyana will not consent to any such DP Sub-processor further sub-contracting the processing of any

personal data on behalf (directly or indirectly) of the Customer without obtaining the Customer’s prior written consent and ensuring that such DP Sub-processor enters into a written agreement with its sub-sub-processor including provisions equivalent to those in Clauses 9.13.1 to 9.13.3 inclusive.

9.15 Gyana remains fully liable to the Customer for the performance of each of its DP Sub-processors and their sub-contractors in relation to processing Personal Data.

9.16 The Customer will:
9.16.1 comply with its obligations under the Data Protection Legislation which arise in relation to this Contract and the receipt of the Services;
9.16.2 not do or omit to do anything which causes Gyana to breach any of its obligations under the Data Protection Legislation; and
9.16.3 reimburse Gyana for any reasonable costs reasonably incurred by Gyana in performing its obligations under Clauses 9.7.7, 9.8, 9.9, 9.10.3 and 9.10.4, in each case except to the extent that such costs were incurred as a result of any breach by Gyana of any of its obligations under this Clause 9 or Data Protection Legislation.

9.17 The Customer represents, warrants and undertakes to Gyana that:
9.17.1 the Customer (and any other sub-contractor of the Customer) has obtained the Personal Data in accordance with the Data Protection Legislation and has provided (or will provide) all necessary notices to data subjects whose personal data comprises part of the Personal Data (including an explanation of: (a) the basis on which the Personal Data is collected from the data subject or provided by the data subject and processed by Gyana; and (b) the purpose of the processing of the Personal Data by Gyana); and
9.17.2 it has (or will at the required time have) one or more valid grounds for Gyana’s (and any DP Sub-processors and their sub-sub-processors’) processing of the Personal Data in accordance with this Contract
so that Gyana’s (and any DP Sub-processors and their sub-sub-processors) processing of the Personal Data in accordance with this Contract complies with the Data Protection Legislation.

9.18 Except as expressly provided in Clause 9.16.3 each Party will comply with its obligations in this Clause 9 at no additional charge or cost to the other Party.

9.19 The Customer agrees to indemnify Gyana and keep Gyana fully and effectively indemnified on demand in respect of any type of liability, loss, damage, claims, actions, charges, costs (including legal fees) and expenses incurred by Gyana in connection with any breach of this Clause 9.

10. GYANA’S OBLIGATIONS

10.1 Gyana undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
10.2 The undertaking at Clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Gyana’s instructions, or modification or alteration of the Gyana’s Services by any party other than Gyana or Gyana’s duly authorised contractors or agents.  If the Services do not conform with the foregoing undertaking, Gyana will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with a reasonable alternative means of accomplishing the desired performance.  Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 10.1.  Notwithstanding the foregoing, to the maximum extent permitted by applicable law, the Services are provided on an ‘AS IS’ basis and Gyana:
10.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
10.2.2 does not accept responsibility for any liability that arises in connection with anyone unlawfully obtaining access to Customer’s subscription to the Services in order to abuse the nature and intent of the Services;

10.2.3 does not accept responsibility for any liability that arises in connection with the theft of any Customer usernames or passwords by unauthorised third parties;
10.2.4 does not warrant that the Services are compatible with the Customer’s or any third party’s software or equipment; and
10.2.5 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.3 Except as expressly set out in this Contract, Gyana expressly disclaims and excludes all representations or warranties of any kind, whether express or implied, to the maximum extent permitted by applicable law in relation to any aspect of the Services, including without limitation, those concerning satisfactory quality or fitness for purpose.

10.4 This Contract shall not prevent Gyana 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 this Contract.

11. CONSUMER’S OBLIGATIONS

11.1 The Customer shall:
11.1.1 provide Gyana with (i) all necessary co-operation in relation to this Contract; and (ii) all necessary access to such information as may be reasonably required by Gyana; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
11.1.2 comply with its obligations as set out in each Order Form;
11.1.3 comply with all applicable laws and regulations with respect to its activities under this Contract;
11.1.4 carry out all other Customer responsibilities set out in this Contract 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, Gyana may adjust any agreed timetable or delivery schedule as reasonably necessary;
11.1.5 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User’s breach of this Contract;
11.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for Gyana, its contractors and agents to perform their obligations under this Contract, including without limitation the Services;
11.1.7 promptly (and in any event within 12 hours of its first occurrence) notify Gyana of any breach of the security of the Software and/or the Services, howsoever caused, including but not limited to attacks from Viruses, denial of service attacks and the like;
11.1.8 ensure that its and each Authorised User’s network, software, hardware and systems comply with the relevant specifications provided by Gyana from time-to-time.  The Customer acknowledges that non-compliance with this Clause may result in Authorised Users not being able to access or use the Services;
11.1.9 be solely responsible for procuring and maintaining its network connections, operating environment and telecommunications links from its systems to Gyana’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, operating environment or telecommunications links or caused by the internet; and
11.1.10 remain responsible for the effective and efficient management, co-ordination and performance of all third party interfaces and agreements with which Gyana requires usage and contract with to enable it to provide the GyanaServices (save for those provided as part of the Services).

11.2 Gyana shall not be liable to the Customer in relation to delayed completion or performance of any of its obligations under this Contract to the extent to which such delay or failure is the result of any act or omission of the Customer or any Authorised User.

12. CHARGES AND PAYMENTS

12.1 The Customer shall pay the Subscription Fees to Gyana for the User Subscriptions in accordance with the terms of this Contract.  Unless

otherwise stated in each Order Form, such Subscription Fees shall be payable in advance for the entire term of the Order Form in accordance with Clause 12.2.

12.2 All sums due to Gyana under this Contract will be payable by the Customer by electronic bank transfer within thirty (30) days of receipt of an invoice.

12.3 All sums payable to the Supplier under this Contract:
12.3.1 are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
12.3.2 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12.4 Without prejudice to any other right or remedy that Gyana may have, if the Customer fails to pay Gyana any sum due under this Contract on the due date Gyana may on written notice to the Customer:
12.4.1 immediately require the Customer to pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time-to-time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and/or
12.4.2 immediately suspend all Services until payment has been made in full.

13. PROPRIETARY RIGHTS AND INDEMNITY

13.1 The Customer acknowledges and agrees that Gyana and/or its licensors own all of the rights (including the Intellectual Property Rights) in the Services and the Documentation. Except as expressly stated herein, this Contract does not grant the Customer any rights (including the Intellectual Property Rights) in respect of the Services or the Documentation.

13.2 Gyana confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract.

13.3 The Customer shall defend, indemnify and hold harmless Gyana against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation.

13.4 Subject to Clauses 7, 13.5 and 13.6, Gyana will indemnify and keep fully and effectively indemnified the Customer on demand from and against any and all claims made against the Customer alleging that the normal use of the Indemnified Software infringes the Intellectual Property Rights of a third party (an “IPR Claim”). Such indemnity will include all losses, damages, costs and expenses incurred by the Customer as a consequence of or in connection with such claim.

13.5 Immediately upon becoming aware of an IPR Claim which might give rise to any liability on Gyana to indemnify the Customer under Clause 13.4, the Customer will (a) give written notice of the IPR Claim to Gyana; (b) allow Gyana to assume the control and conduct of the defence and settlement of the IPR Claim; and (c) give such assistance as may reasonably be required by Gyana in the defence, settlement or compromise of the IPR Claim.

13.6 The indemnity in Clause 13.4 will not extend to any IPR Claim which arises as a result of: (a) the Customer’s use of the Indemnified Software otherwise than in accordance with this Contract and/or the Documentation; (b) any modifications to the Indemnified Software made by any person other than Gyana, its employees or agents or any modifications made by any other person where such modifications have not been authorised by Gyana; and/or (c) use of the Indemnified Software for a purpose not specified in this Contract or otherwise contemplated by this Contract.

13.7 At any point after the occurrence of an IPR Claim, Gyana may at its own option and expense: (a) procure for the Customer the right to continue using the Indemnified Software in the manner contemplated by this Contract; or (b) replace or modify the Indemnified Software so that it no longer infringes the rights of any third party (provided that any such replacement or modification of the Indemnified Software will not materially affect the functionality of the Indemnified Software); or (c) in the event that neither of the options 13.7(a) and 13.7(b) is available, Gyana may terminate this Contract.

14. TERMINATION

14.1 Without affecting any other right or remedy available to it, either Party may terminate this Contract with immediate effect by giving written notice to the other Party if the other Party:
14.1.1 commits a material breach of any other term of this Contract 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;
14.1.2 is unable to pay its debts or becomes insolvent;
14.1.3 is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction);
14.1.4 has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets; or
14.1.5 enters into or proposes any composition or arrangement with its creditors generally.

14.2 Without affecting any other right or remedy available to it, Gyana may terminate this Contract with immediate effect by giving written notice to the Customer if:
14.2.1 the Customer fails to pay any amount due under this Contract on the due date for payment;
14.2.2 there is a change of control of the Customer;
14.2.3 an Authorised User breaches the terms of this Contract or breaches the end-user terms in place between it and Gyana; or
14.2.4 any other agreement between Gyana and the Customer terminates or expires.

14.3 If a Party terminates this Contract in accordance with Clause 14.1 or 14.2, it may elect whether or not it wishes to continue with any Order Form then in existence.  If no such election is made at the time of termination, the Order Form shall terminate at the same time.

15. CONSEQUENCES OF TERMINATION

15.1 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination or expiry.

15.2 On termination of this Contract for any reason:
15.2.1 all rights granted to the Customer under this Contract shall cease;
15.2.2 the Customer shall cease all activities authorised by this Contract;
15.2.3 the Customer shall immediately pay to Gyana any sums due to Gyana under this Contract;
15.2.4 the Customer shall permanently delete and make no further use of any data, materials or other content obtained from the Services (and all copies of them);
15.2.5 each Party shall return and make no further use of any other equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;
15.2.6 without prejudice to Gyana’s obligations under Clause 9, Gyana may retain Customer Data for legal, regulatory, audit, and compliance reasons; and
15.2.7 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 this Contract which existed at or before the date of termination shall not be affected or prejudiced.

15.3 If an Order Form is terminated, the provisions of this Clause 15 shall apply in respect of that Order Form.

15.4 Any provision of this Contract which expressly or by implication is intended to come into or continue in force on or after termination of this Contract including Clauses 7, 8, 13, 14.3, 15.2, 16, 17.2, 17.16 and 17.17 shall remain in full force and effect.

16. CONFIDENTIALITY

16.1 Each Party shall, during the term of this Contract and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Contract) nor without the prior written consent of the other disclose to any third party (except any sub-contractors engaged by Gyana (or their sub-contractors) on a need to know basis for the performance of the Services (or services related to the Services), its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such Party from the other Party and which relates to the other Party, unless that information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, or subsequently comes lawfully into the possession of such Party from a third party. Each Party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

17. GENERAL

17.1 Gyana may vary the terms of this Contract and/or an Order Form on 30 days’ prior written notice to the Customer.  Upon the expiry of the aforementioned 30 day period the Customer shall be deemed to have accepted the variation proposed by Gyana unless the Customer has within that 30 day period served written notice to terminate this Contract to Gyana (such termination notice to be effective on the expiry of a period of 180 days from the date of the termination notice).  For the avoidance of doubt, the Customer may not vary the terms of the Contract without the prior written consent of Gyana.

17.2 No failure or delay by a Party to exercise any right or remedy provided under this Contract 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.

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

17.4 The Customer shall not without the prior written consent of Gyana (i) sub-license, assign or novate the benefit or burden of this Contract in whole or in part; or (ii) deal in any other manner with any or all of its rights and obligations under this Contract.  Gyana may at any time sub-license, subcontract, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Contract, provided it gives written notice to the Customer.

17.5 Notwithstanding Clause 16, Gyana may disclose to a proposed assignee any information in its possession that relates to this Contract or its subject matter, the negotiations relating to it and the Customer which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 17.5 shall be made until notice of the identity of the proposed assignee has been given to the Customer.

17.6 This Contract contains the whole agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the Parties relating to that subject matter.

17.7 Each Party acknowledges that, in entering into this Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a Party to this Contract or not) (“Representation”) other than as expressly set out in this Contract.  Each Party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.  For the avoidance of doubt, this Clause 17.7 is subject to Clause 7.1.

17.8 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Contract.

17.9 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.10 This Contract (and any Order Form) may be executed in any number of counterparts, each of which when executed and delivered shall

constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

17.11 A person who is not a Party to this Contract will have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms.  The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any person that is not a Party to this Contract.

17.12 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.  Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

17.13 Neither Party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 6 weeks, the Party not affected may terminate this Contract (or the relevant Order Form) by giving 10 days’ written notice to the affected Party.

17.14 Any notice given to a Party under or in connection with this Contract shall be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); (b) sent by fax to its main fax number; or (c) sent by email to the relevant contact email address as stated by each Party in or in accordance with an Order Form (with a copy sent to legal@gyana.co.uk in the case of notices served to Gyana).

17.15 Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; (c) if sent by fax, at 9.00 am on the next Business Day after transmission; or (d) if sent by email during Business Hours, at the time of the transmission provided that no bounceback message is received, if sent outside of Business Hours at 9.30am on the next Business Day after transmission.  This Clause 17.15 and Clause 17.14 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17.16 This Contract 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 laws of England and Wales.

17.17 The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims)