Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
“Acquire” means Tagove Limited, a Delaware corporation with its principal place of business at 50 Fremont Street, Suite 2250, San Francisco, CA 94105, d/b/a Acquire.
“Authorized Users” means those employees, agents and independent contractors of the Customer or of the Customer’s suppliers or business partners who are authorized by the Customer to use the Services and the Documentation.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the State of California when banks in the State of California are open for business.
“Conditions” means these terms and conditions set out in Clause 1 (Definitions and Interpretation) to Clause 20 (Governing Law and Jurisdiction) (inclusive).
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 10.5 or Clause 10.6.
“Customer” means the entity referred to in the Order Form that purchases a subscription to access the Services and the Software from Acquire.
“Customer Data” means the data processed by Acquire on the Customer’s behalf to facilitate the Customer’s use of the Services.
“Customer Personal Data” means any Customer Data that constitutes personal data, personal information, or personally identifiable information as defined under applicable Data Protection Laws.
“Data Protection Laws” means any data protection or privacy law applicable to Customer Personal Data.
“Documentation” means any documentation made available to the Customer by Acquire which sets out a description of the Services and/or the Software and the user instructions for the Services and/or the Software.
“Effective Date” means the Effective Date as set forth in the Order Form.
“Initial Subscription Term” means 12 months.
“Order Form” means the order form signed by the Customer and Acquire for the provision of the Services.
“Renewal Period” means the period described in Clause 13.1.
“SaaS Agreement” means that certain agreement by and between the Customer and Acquire for the supply of the Services and the Software, which is comprised of the Order Form, these Conditions, the SLA, and any applicable Statements of Work.
“Services” means the subscription services provided by Acquire to the Customer under this SaaS Agreement.
“SLA” means the service level agreement for providing support in relation to the Services and the Software together with uptime commitments in relation to the availability of the Services.
“Software” means any software applications provided by Acquire as part of the Services including, without limitation, any plugins or code.
“Start Date” means the date referred to as the Start Date on the Order Form.
“Subscription Fees” means the subscription fees payable by the Customer to Acquire for the User Subscriptions as referred to 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 Subscriptions” means the user subscriptions purchased by the Customer pursuant to Clause 8.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with the SaaS Agreement.
“Virus” means any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program 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 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as of the Effective Date.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as of the Effective Date under that statute or statutory provision.
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with the SaaS Agreement, Acquire grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorized Users to use the Services, the Software and the Documentation during the Subscription Term solely for the Customer’s business operations.
2.2 In relation to the Authorized Users, the Customer agrees that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services, the Software and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) the Customer will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services, the Software and/or the Documentation;
(c) each Authorized User shall keep a secure password for his or her use of the Services and the Documentation and each Authorized User shall keep his or her password confidential;
(d) the Customer shall permit Acquire or Acquire’s designated auditor to audit the Services in order to establish the name and password of each Authorized User and Acquire’s data processing facilities to audit compliance with the SaaS Agreement;
(e) if any of the audits referred to in Clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to Acquire’s other rights, the Customer shall promptly disable such passwords; and
(f) if any of the audits referred to in Clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to Acquire, then without prejudice to Acquire’s other rights, the Customer shall pay to Acquire an amount equal to such underpayment as calculated in accordance with Acquire’s then-current price lists within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Virus, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images or promotes unlawful violence;
(d) is discriminatory based on race, gender, color, religious belief, sexual orientation, age, or disability; or
(e) is otherwise illegal or causes damage or injury to any person or property.
Acquire reserves the right, without liability or prejudice to its other rights with respect to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) 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 SaaS Agreement:
- (i) 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 in any form or media or by any means; or
- (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services, the Software and Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation;
(c) except to the extent expressly permitted under the SaaS Agreement, use the Services, the Software and/or Documentation to provide services to third parties;
(d) subject to Clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorized Users;
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this Clause 2;
(f) introduce or permit the introduction of, any Virus into Acquire’s network and/or information systems; or
(g) otherwise access or use the Services, the Software, or the Documentation beyond the scope of the authorization granted under the SaaS Agreement.
2.5 The Customer shall use its best efforts to prevent any unauthorized access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorized access or use, immediately notify Acquire.
2.6 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any affiliate, subsidiary or holding company of the Customer.
Additional User Subscriptions
3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Acquire shall grant access to the Services, the Software and the Documentation to such additional Authorized Users in accordance with the provisions of the SaaS Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Acquire in writing. Acquire shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. If Acquire approves the request, Acquire shall activate the additional User Subscriptions and invoice the Customer for the Subscription Fees payable in respect of the additional User Subscriptions. The Customer shall pay such invoice within 30 days of receipt.
3.3 If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be prorated from the date of activation by Acquire for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 Acquire shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of the SaaS Agreement.
4.2 Acquire shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for any unavailability due, in whole or in part, to any (a) act or omission by Customer or any Authorized User, (b) Customer’s or its Authorized User’s internet connectivity, (c) delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the SaaS Agreement, (d) maintenance carried out by Acquire or its representatives, provided that Acquire has used reasonable efforts to give the Customer at least four hours’ notice in advance of such maintenance, or (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Acquire pursuant to the SaaS Agreement.
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not Customer Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Acquire shall be for Acquire to use commercially reasonable efforts to restore the lost or damaged Customer Data. Acquire shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party. If any loss or damage to Customer Data is caused by the Customer or any of its employees, agents or contractors then Acquire may charge the Customer for the reasonable costs of restoring the Customer Data, such costs to be agreed between Acquire and the Customer in advance.
5.3 Both parties will comply with all applicable Data Protection Laws.
5.4 The parties acknowledge that Acquire processes Customer Personal Data in order to provide the Services set forth in the SaaS Agreement.
5.5 Without prejudice to the generality of Clause 5.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Acquire for the duration and purposes of the SaaS Agreement so that Acquire may lawfully use, process and transfer the personal data in accordance with the SaaS Agreement on the Customer’s behalf.
5.6 Without prejudice to the generality of Clause 5.3, Acquire shall, in relation to any Customer Personal Data processed in connection with the performance by Acquire of its obligations under the SaaS Agreement:
(a) process Customer Personal Data only to the extent necessary for the purposes specified in the SaaS Agreement and in accordance with the Customer’s documented instructions, unless otherwise required to do so by applicable law, in which case Acquire shall notify the customer of the applicable legal requirement, unless the applicable law prohibits Acquire from providing the information on important grounds of public interest;
(b) ensure any individuals processing Customer Personal Data are bound by confidentiality requirements;
(c) where required to do so by applicable Data Protection Laws, assist the Customer, at the Customer’s cost, in ensuring compliance with its obligations under Data Protection Laws with respect to security of processing, breach notifications, data protection impact assessments, and consultations with supervisory authorities or regulators, taking into account the nature of the processing and the information available to Acquire;
(d) notify the Customer without undue delay upon becoming aware of a data breach affecting Customer Personal Data;
(e) at the choice of the Customer, delete or return any Customer Personal Data to the Customer on expiration or termination of the SaaS Agreement unless applicable law requires Acquire to continue storing the Customer Personal Data;
(f) immediately inform the Customer if, in the opinion of Acquire, an instruction from the Customer infringes any applicable Data Protection Law;
(g) where required to do so by applicable Data Protection Laws, not engage any subprocessors to process Customer personal data without the Customer’s prior authorization; and
(h) where required to do so by applicable Data Protection Laws, make available to the Customer, at the Customers expense, information necessary to demonstrate compliance with applicable Data Protection laws and allow for and contribute to audits conducted by the Customer no more than annually.
6.1 Acquire undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care and that the Software will function substantially in accordance with the Documentation.
6.2 Clause 6.1 shall not apply to the extent that any non-conformance is caused by use of the Services or the Software contrary to Acquire’s instructions, or modification or alteration of the Services or the Software by any party other than Acquire or Acquire’s duly authorized contractors or agents. If the Services or the Software do not comply with the obligation set forth in Clause 6.1, Acquire will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the obligation set forth in Clause
6.1. Notwithstanding the foregoing, Acquire:
(a) does not warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free, or that the Services, the Software, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) 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, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 Acquire warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the SaaS Agreement.
7.1 The Customer shall:
(a) provide Acquire with:
- (i) all necessary cooperation in relation to the SaaS Agreement;
- (ii) all necessary access to such information as may be required by Acquire; and
- (iii) in order to provide the Services, including but not limited to Customer Data, security access
information and configuration services and any Software;
(b) without affecting its other obligations under the SaaS Agreement, comply with all applicable laws and regulations with respect to its activities under the SaaS Agreement;
(c) carry out all other Customer responsibilities set out in the SaaS 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, Acquire may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services, the Software and the Documentation in accordance with the SaaS Agreement and shall be responsible for any Authorized User’s breach of the SaaS Agreement;
(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Acquire, its contractors and agents to perform their obligations under the SaaS Agreement, including, without limitation, the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Acquire from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in the SaaS Agreement, solely responsible for (i) procuring, maintaining and securing its network connections and telecommunications links from its systems to Acquire’s data centers, and (ii) 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.
7.2 If Customer becomes aware of any actual or threatened activity prohibited by the SaaS Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Acquire of any such actual or threatened activity.
Charges and Payments
8.1 The Customer shall pay the Subscription Fees to Acquire for the User Subscriptions in accordance with this Clause 8.
8.2 Acquire shall invoice the Customer:
(a) on the Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to Clause 13.1, on each anniversary of the Start Date for the Subscription Fees payable in respect of the next Renewal Period, and the
Customer shall pay each invoice within 30 days of receipt.
8.3 If Acquire has not received a payment due to it under the SaaS Agreement by its due date, then, without prejudice to any other rights and remedies of Acquire:
(a) Acquire may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Software and Acquire shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid;
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the Bank of England’s base rate from time to time (or if such base rate is zero or below zero then 8%), commencing on the due date and continuing until fully paid, whether before or after judgment; and
(c) Customer shall reimburse Acquire for all costs incurred by Acquire in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
8.4 All amounts and fees stated or referred to in the SaaS Agreement:
(a) shall be payable in United States Dollars;
(b) are non-cancellable and non-refundable, except as may be set forth in the Order Form; and
(c) are exclusive of taxes and similar assessments, which shall be added to Acquire’s invoice(s) at the appropriate rate, if applicable. Without limiting the foregoing, Customer is solely responsible for all local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes on any amounts payable by Customer hereunder. If Acquire has a legal obligation to pay or collect such taxes for which Customer is responsible under the SaaS Agreement, the appropriate amount shall be computed based on Customer’s address which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Acquire with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.5 Acquire shall be entitled to increase the Subscription Fees and the fees payable with respect to the additional User Subscriptions purchased pursuant to Clause 3.3, at the start of each Renewal Period upon 30 days’ prior notice to the Customer.
9.1 The Customer acknowledges and agrees that Acquire and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation including, without limitation, in the product of any development and/or integration work that Acquire may carry out for the Customer. Except as expressly stated herein, the SaaS Agreement does not grant the Customer any rights to, under or in, any patents, copyright, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services, the Software, the Documentation or of the product of any development and/or integration work that Acquire may carry out for the Customer.
9.2 Acquire confirms that it owns all applicable rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under the SaaS Agreement.
10.1 Each party may be given access to Confidential Information by the other party in order to perform its obligations under the SaaS Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to Clause 10.4, 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 SaaS Agreement.
10.3 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 provisions of the SaaS Agreement.
10.4 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Customer acknowledges that details of the Services are included Acquire’s Confidential Information.
10.6 Acquire acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 The above provisions of this Clause 10 shall survive any termination of the SaaS Agreement.
11.1 The Customer shall defend, indemnify and hold harmless Acquire, its affiliates, and each of its and their respective past and present directors, officers, employees, agents, subcontractors, successors and assigns 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 (i) the Customer’s use of the Services and/or Documentation, (ii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the SaaS Agreement, (iii) any materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with the SaaS Agreement, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Acquire provides reasonable cooperation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 Acquire shall defend the Customer, its officers, directors and employees against any claim that the Services, the Software or the Documentation infringes any United States patent effective as of the Start Date, copyright, trade mark or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Acquire is given prompt notice of any such claim;
(b) the Customer provides reasonable cooperation to Acquire in the defence and settlement of such claim, at Acquire’s expense; and
(c) Acquire is given sole authority to defend or settle the claim.
11.3 In the defense or settlement of any claim, Acquire may procure the right for the Customer to continue using the Services, the Software or the Documentation, replace or modify the Services, the Software or the Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate the SaaS 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.
11.4 In no event shall Acquire, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services, the Software or Documentation by anyone other than Acquire; or
(b) the Customer’s use of the Services, the Software or Documentation in a manner contrary to the instructions given to the Customer by Acquire; or
(c) the Customer’s use of the Services, the Software or Documentation after notice of the alleged or actual infringement from Acquire or any appropriate authority.
11.5 Clause 11 and Clause 12.3(b) state the Customer’s sole and exclusive rights and remedies, and Acquire’s (including Acquire’s affiliates, and each of its and their respective past and present directors, officers, employees, agents, subcontractors, successors and assigns) entire obligations and liability, for infringement of any patent, copyright, trade mark or right of confidentiality.
Limitation of Liability
12.1 Except as expressly and specifically provided in the SaaS Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. Acquire shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Acquire by the Customer in connection with the Services, or any actions taken by Acquire at the Customer’s direction; and
(b) 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 SaaS Agreement.
12.2 Nothing in the SaaS Agreement excludes the liability of Acquire:
(a) for death or personal injury caused by Acquire’s gross negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to Clause 12.1 and Clause 12.2:
(a) Acquire 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, loss of business, depletion of goodwill and/or similar losses or 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 SaaS Agreement; and
(b) Acquire’s total aggregate liability in contract (including in respect of the indemnity at Clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the SaaS Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Term and Conditions
13.1 The SaaS Agreement shall, unless otherwise terminated as provided in this Clause 13, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, the SaaS Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the SaaS Agreement shall terminate upon the expiration of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of the SaaS Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate the SaaS Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the SaaS Agreement on the due date for payment and remains in default for 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other provisions of the SaaS Agreement, which breach is irremediable, or (if such breach is remediable) such party fails to remedy such breach within a period of 15 days after being notified in writing to do so; or
(c) the other party makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed.
13.3 On termination of the SaaS Agreement for any reason:
(a) all rights, licenses, consents, and authorizations granted under the SaaS Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Software and/or the Documentation;
(b) the Customer shall immediately and permanently erase any Software made available or supplied by Acquire to the Customer and contained within any of the Customer’s platforms, networks or systems;
(c) each party shall promptly return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) Acquire may destroy or otherwise dispose of any of the Customer Data in its possession unless Acquire receives, no later than 10 days after the effective date of the termination of the SaaS Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Acquire shall use commercially reasonable efforts to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Acquire in returning or disposing of Customer Data;
(e) 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 SaaS Agreement which existed at or before the date of termination shall not be affected or prejudiced;
(f) Acquire may disable all Customer and Authorized Users access to the Services, the Software, and the Documentation; and
(g) if Acquire terminates the SaaS Agreement pursuant to Clause 13.2(a) or Clause 13.2(b), all Subscription Fees that would have become payable had the SaaS Agreement remained in effect until the expiration of the Subscription Term will become immediately due and payable, and Customer shall pay all such Subscription Fees, together will all previously-accrued but not yet paid Subscription Fees, on receipt of Acquire’s invoice therefor.
13.4 Acquire may, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) Acquire receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Acquire to do so; or (b) Acquire believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of the SaaS Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the SaaS Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) the SaaS Agreement expires or is terminated. This Clause 13.4 does not limit any of Acquire’s other rights or remedies, whether at law, in equity, or under the SaaS Agreement.
13.5 The provisions set forth in the following sections, and any other right or obligations of the parties in the SaaS Agreement that, by its nature, should survive termination or expiration of the SaaS Agreement, will survive any expiration or termination of the SaaS Agreement: Clause 2.4, Clause 9, Clause 10, Clause 11, Clause 12, this Clause 13.4, and Clause 20.
Acquire shall have no liability to the Customer under the SaaS Agreement if it is prevented from or delayed in performing its obligations under the SaaS 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 Acquire or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, war, riot, civil unrest, 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 subcontractors, or any other circumstance outside the reasonable control of Acquire, provided that the Customer is notified of such an event and its expected duration.
No amendment to or modification of the SaaS Agreement shall be effective unless it is in writing and signed by the parties (or their Authorized representatives). Notwithstanding anything to the contrary contained herein, in the event these Conditions are or were altered, modified, or otherwise changed during the course of a parties’ negotiations and discussions, these Conditions as altered, modified or changed from such negotiations and discussions shall govern and control over any materially inconsistent or otherwise directly conflicting terms and conditions otherwise applicable to the Services, whether agreed before or following the Start Date.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure or delay by a party to exercise any right or remedy provided under the SaaS 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.
17.1 If any provision or part-provision of the SaaS 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 SaaS Agreement.
17.2 If any provision or other term of the SaaS Agreement is deemed deleted under Clause 17.1, 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.
18.1 The SaaS Agreement constitutes the sole and 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.
18.2 Each party acknowledges that in entering into the SaaS Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in the SaaS Agreement.
Neither party shall, without the prior written consent of the other, assign or transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the SaaS Agreement; provided, that Acquire may assign this SaaS Agreement without notice or consent to (a) an affiliate of Acquire, or (b) an entity that acquires all or substantially all of the equity or assets of Acquire, whether by merger, reorganization, acquisition, sale, or otherwise.
Governing Law and Jurisdiction
The SaaS Agreement shall be enforced, governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The sole jurisdiction and venue for actions related to the SaaS Agreement shall be a federal or state court located in California.