Terms

These are the terms on which SingleView Tech Limited, of 3rd Floor 54 Princess Street, Manchester, England, M1 6HS, incorporated in England and Wales with company number 05202230 (the ‘Supplier’) agrees to provide its services to the Customer to the exclusion of all other terms.

  • 1.
    INTERPRETATION

    1.1

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

    Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the User Materials, as further described in clause 2.2(a).

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

    Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.

    Customer: the receipient of the SVT Services named on the Order.

    Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the SVT Services or facilitating the Customer's use of the SVT Services.

    Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.

    Effective Date: the date of this Agreement.

    Event: each click, impression, view or similar by the Customer in the course of using the SVT Services pursuant to this Agreement.

    Initial Subscription Term: the initial term of this Agreement as set out in the Or/p>

    Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

    Order: the Supplier’s order documentation in which these terms are referen/p>

    Renewal Period or Renewal Term: the period described in clause 14.1.

    SVT Services: the subscription services provided by the Supplier to the Customer under this Agreement via https://singleview.media or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the User Materials.

    SVT Software: the online software applications known as SingleView provided by the Supplier as part of the SVT Services.

    Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User URLs, as set out in the Order.

    Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

    Support Services Policy: the Supplier's service levels for support in relation to the SVT Services as set out in the Schedule attached to this Agreement.

    User Materials: the videos and other explanations made available to the Customer by the Supplier online via https://singleview.media or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the SVT Services and the user instructions for the SVT Services.

    User URLs: the URLs nominated by the Customer as set out in the Order.

    Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

    Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

    1.2

    Clause headings shall not affect the interpretation of this Agreement.

    1.3

    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

    1.4

    Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

    1.5

    Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

    1.6

    A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

    1.7

    A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

    1.8

    References to clauses are to the clauses of this Agreement.

    1.9

    A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

    2.
    USER URLS

    2.1

    Subject to the Customer purchasing the SVT Services in respect of the User URLs in accordance with clause 3.2 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the SVT Services and the User Materials during the Subscription Term solely for the Customer's internal business operations.

    2.2

    The Customer acknowledges that the Supplier shall control access to the SVT Services by the Authorised Users and shall provide such assistance as the Supplier shall require from time to time in relation to granting and monitoring that access.

    2.3

    The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the SVT 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;

    (d)
    promotes unlawful violence;

    (e)
    is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

    (f)
    is otherwise illegal or causes damage or injury to any person or property;

    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 this 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 SVT Software and/or User Materials (as applicable) 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 SVT Software; or

    (b)
    access all or any part of the SVT Services and User Materials in order to build a product or service which competes with the SVT Services and/or the User Materials; or

    (c)
    use the SVT Services and/or User Materials to provide services to third parties; or

    (d)
    subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SVT Services and/or User Materials available to any third party except the Authorised Users, or

    (e)
    attempt to obtain, or assist third parties in obtaining, access to the SVT Services and/or User Materials, other than as provided under this clause 2; or

    (f)
    introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.

    2.5

    The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SVT Services and/or the User Materials and, in the event of any such unauthorised access or use, promptly notify the Supplier.

    2.6

    The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

    3.
    ADDITIONAL USER URLS

    3.1

    Subject to clause 1.1 and clause 3.2, the Customer may, from time to time during any Subscription Term, purchase additional User URLs in excess of the number set out in the Order and the Supplier shall incorporate those User URLs in the SVT Services in accordance with the provisions of this Agreement.

    3.2

    3.2 If the Supplier approves the Customer's request to purchase additional User URLs, the Customer shall, within 28 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User URLs as set out in the Order and, if such additional User URLs are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

    4.
    SVT SERVICES

    4.1

    The Supplier shall, during the Subscription Term, provide the SVT Services and make available the User Materials to the Customer on and subject to the terms of this Agreement.

    4.2

    The Supplier shall use commercially reasonable endeavours to make the SVT Services available 24 hours a day, seven days a week, except for:

    (a)

    planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

    (b)

    unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least [6] Normal Business Hours' notice in advance.

    4.3

    The Supplier will, as part of the SVT Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the SVT Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier's then current rates.

    5.
    CUSTOMER DATA

    5.1

    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 all such Customer Data. The Customer hereby grants to the Supplier and all members of its Group a non-exclusive right to use the Customer Data for the purposes of providing the SVT Services.

    5.2

    The Supplier shall have no responsibility for loss or damage to Customer Data.

    5.3

    Both parties will comply with the obligations contained in Schedule 2, the terms of which are incorporated herein in their entirety.

    6.
    THIRD PARTY PROVIDERS

    The Customer acknowledges that the SVT Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the SVT Services.

    7.
    SUPPLIER'S OBLIGATIONS

    7.1

    The Supplier undertakes that the SVT Services will be performed with reasonable skill and care.

    7.2

    The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the SVT Services contrary to the Supplier's instructions, or modification or alteration of the SVT Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the SVT Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours 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 undertaking set out in clause 7.1.

    7.3

    The Supplier:

    (a)

    does not warrant that:

    (i)

    the Customer's use of the SVT Services will be uninterrupted or error-free;

    (ii)

    that the SVT Services, User Materials and/or the information obtained by the Customer through the SVT Services will meet the Customer's requirements; or

    (iii)

    the SVT Software or the SVT Services will be free from Vulnerabilities.

    (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 SVT Services and User Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

    7.4

    The Customer acknowledges and agrees that the Customer Data is subject to standard data download and processing operational parameters and that a period of 24 hours elapses between the time of tracking and the tracking being reflected in the Customer Data.

    7.5

    This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing User Materials, products and/or services which are similar to those provided under this Agreement.

    7.6

    The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

    8.
    CUSTOMER'S OBLIGATIONS

    8.1

    The Customer shall:

    (a)

    provide the Supplier with:

    (i)

    all necessary co-operation in relation to this Agreement; and

    (ii)

    all necessary access to such information as may be required by the Supplier;

    (b)

    without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

    (c)

    carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

    (d)

    ensure that the Authorised Users use the SVT Services and the User Materials in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

    (e)

    obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the SVT Services;

    (f)

    ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

    (g)

    be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

    9.
    CHARGES AND PAYMENT

    9.1

    The Customer shall pay the Subscription Fees to the Supplier for the SVT Services in accordance with this clause 9 and the Order.

    9.2

    If the Supplier has not received payment within 28 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

    (a)

    the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the SVT Services and the Supplier shall be under no obligation to provide any or all of the SVT Services while the invoice(s) concerned remain unpaid; and

    (b)

    interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

    9.3

    All amounts and fees stated or referred to in this Agreement:

    (a)

    shall be payable in pounds sterling;

    (b)

    are, subject to clause 13.3(b), non-cancellable and non-refundable;

    (c)

    are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

    9.4

    If, at any time whilst using the SVT Services, the Customer exceeds the number of Events specified in the Order (calculated as a monthly average over a period of three months), the Supplier shall charge the Customer, and the Customer shall pay, the charges in the applicable band from that month onwards instead of the Subscription Fees stated in the Order.

    9.5

    The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User URLs purchased pursuant to clause 3.2 and the support fees payable pursuant to clause 4.3 at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Order shall be deemed to have been amended accordingly.

    10.
    PROPRIETARY RIGHTS

    10.1

    The Customer acknowledges and agrees that the Supplier own all intellectual property rights in the SVT Services and the User Materials. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the SVT Services or the User Materials.

    10.2

    The Supplier confirms that it has all the rights in relation to the SVT Services and the User Materials that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

    11.
    CONFIDENTIALITY

    11.1

    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this 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.

    11.2

    Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

    11.3

    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 terms of this Agreement.

    11.4

    A party may disclose Confidential Information to members of its Group and to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    11.5

    The Customer acknowledges that details of the SVT Services, and the results of any performance tests of the SVT Services, constitute the Supplier's Confidential Information.

    11.6

    The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

    11.7

    No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

    11.8

    The above provisions of this clause 11 shall survive termination of this Agreement, however arising.

    12.
    INDEMNITY

    12.1

    The Customer shall defend, indemnify and hold harmless the Supplier and member of its Group 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 SVT Services and/or User Materials, provided that:

    (a)

    the Customer is given prompt notice of any such claim;

    (b)

    the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

    (c)

    the Customer is given sole authority to defend or settle the claim.

    12.2

    The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the SVT Services or User Materials in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right 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)

    the Supplier is given prompt notice of any such claim;

    (b)

    the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

    (c)

    the Supplier is given sole authority to defend or settle the claim.

    12.3

    In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the SVT Services, replace or modify the SVT Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

    12.4

    In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    (a)

    a modification of the SVT Services or User Materials by anyone other than the Supplier; or

    (b)

    the Customer's use of the SVT Services or User Materials in a manner contrary to the instructions given to the Customer by the Supplier; or

    (c)

    the Customer's use of the SVT Services or User Materials after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

    12.5

    The foregoing and clause 13.3(b) state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

    13.
    LIMITATION OF LIABILITY

    13.1

    Except as expressly and specifically provided in this Agreement:

    (a)

    the Supplier and members of its Group shall have no liability for any damage caused by errors or omissions resulting from any errors or omissions in the Customer Data, or any actions taken by the Supplier at the Customer's direction;

    (b)

    the Supplier shall use reasonable care and skill in providing the SVT Services but all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

    (c)

    the SVT Services and the User Materials are provided to the Customer on an "as is" basis.

    13.2

    Nothing in this Agreement excludes the liability of the Supplier and members of its Group:

    (a)

    for death or personal injury caused by the Supplier's negligence; or

    (b)

    for fraud or fraudulent misrepresentation.

    13.3

    Subject to clause 13.1 and clause 13.2:

    (a)

    the Supplier and members of its Group 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 this Agreement; and

    (b)

    the total aggregate liability of the Supplier and members of its Group in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the SVT Services during the 12 months immediately preceding the date on which the claim arose.

    14.
    TERM AND TERMINATION

    14.1

    This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this 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 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

    (b)

    otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

    14.2

    Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

    (a)

    the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment;

    (b)

    the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

    (c)

    the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

    (d)

    the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

    (e)

    the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (f)

    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

    (g)

    an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

    (h)

    the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

    (i)

    a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

    (j)

    a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

    (k)

    any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause (d) to clause (j) (inclusive); or

    (l)

    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

    14.3

    On termination of this Agreement for any reason:

    (a)

    all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the SVT Services and/or the User Materials;

    (b)

    each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

    (c)

    the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.7(c);

    (d)

    the Customer shall disable any access the Supplier may have to Customer Data provided that if it does not comply with this obligation then the Supplier shall be entitled to continue to use any Customer Data delivered to it as a result; and

    (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 agreement which existed at or before the date of termination shall not be affected or prejudiced.

    15.
    FORCE MAJEURE

    The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, epidemics and pandemics, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

    16.
    VARIATION

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

    17.
    WAIVER

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

    18.
    RIGHTS AND REMEDIES

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

    19.
    SEVERANCE

    19.1

    If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

    19.2

    If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 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.

    20.
    ENTIRE AGREEMENT

    20.1

    This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    20.2

    Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

    20.3

    Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

    20.4

    Nothing in this clause shall limit or exclude any liability for fraud.

    21.
    ASSIGNMENT

    21.1

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

    21.2

    The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

    22.
    NO PARTNERSHIP OR AGENCY

    Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

    23.
    NO PARTNERSHIP OR AGENCY

    Other than Awin AG and Awin Limited, this Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

    24.
    NOTICES

    24.1

    Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by e-mail to the e-mail address habitually used by the other party in relation to this Agreement.

    24.2

    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission.

    25.
    GOVERNING LAW

    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

    26.
    JURISDICTION

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1    SUPPORT SERVICES

  • 1.
    Interpretation

    The following definitions and rules of interpretation apply in this schedule.

    1.1

    Definitions:

    Service Levels:

    the service level responses and response times referred to in the table at paragraph 4.1.

    Solution:

    correction of a fault or provision of a workaround that is reasonably acceptable to the Customer.

    Support Hours:

    Monday – Friday, 9:00 to 17:30 excluding UK Bank Holidays.

    Support Request:

    request made by the Customer in accordance with this schedule for support in relation to the SVT Services.

    2.
    Support Services

    2.1

    The Supplier shall provide support to Authorised Users during the Support Hours in accordance with the Service Levels.

    2.2

    As part of the Support Services, the Supplier shall:

    (a)

    provide Help Desk Support by means of the following e-mail address support@singleview.media;

    (b)

    commit appropriate resources to the provision of support;

    (c)

    provide technical support for the SVT Services in accordance with the Service Levels.

    2.3

    The provision of support outside Support Hours or at the Customer’s site or the provision of out-of-scope services shall be as agreed in writing by the parties, including in relation to fees.

    3.
    Submitting Support Requests and access

    3.1

    The Customer may request Support Services by way of a Support Request.

    3.2

    Each Support Request shall include a description of the requirement, and, where relevant, the start time of the incident.

    3.3

    The Customer shall provide the Supplier with:

    (a)

    prompt notice of any issues with the SVT Services which it becomes aware of; and

    (b)

    such output and other data, documents, information, assistance and (subject to compliance with all Customer's security and encryption requirements notified to the Supplier in writing) remote access to the Customer’s system, as are reasonably necessary to assist the Supplier to respond to the relevant Support Request.

    3.4

    Save for where the Supplier reasonably determines that it requires access to the Customer’s site to provide the support, all support shall be provided on an off-site basis (such as over the telephone, by video conference call or by e-mail).

    4.
    Service Levels

    4.1

    The Supplier shall:

    (a)

    prioritise all Support Requests based on its reasonable assessment of the request; and

    (b)

    respond to all Support Requests in accordance with the responses and response times specified in the table set out below:

    Severity level of Fault Definition Service Level response and response time for Operational Faults
    1

    Business Critical Failures:An error in, or failure of, the SVT Services that:

    a)

    materially impacts the operations of the Customer's business or marketability of its service or product;

    b)

    prevents necessary work from being done; or

    c)

    disables major functions of the SVT Services.

    Level 1 Response:

    Acknowledgment of receipt of a Support Request within 30 minutes.

    Level 2 Response:

    The Supplier shall:

    a)

    restore the SVT Services to a state that allows the Customer to continue to use the SVT Services in all material respects within 2 business hours after the Level 1 Response time has elapsed; and

    b)

    exercise commercially reasonable efforts until full restoration of function is provided

    Level 3 Response:

    The Supplier shall work on the problem continuously and implement a Solution within 4 business hours of receipt of the Support Request.

    If the Supplier delivers a Solution by way of a workaround reasonably acceptable to the Customer, the severity level assessment shall reduce to a severity level 2 or lower.

    2

    System Defect with Workaround:

    a)

    a Business Critical Failure in the SVT Services for which a work- around exists; or

    b)

    an error or failure in the SVT Services (other than a Business Critical Failure) that affects the operations of the Customer's business or marketability of its service or product.

    Level 1 Response:

    Acknowledgment of receipt of a Support Request within 4 business hours.

    Level 2 Response:

    The Supplier shall, within 2 Business Days after the Level 1 Response time has elapsed, provide:

    a)

    an emergency software fix or workaround, or; and

    b)

    temporary release or update release, which allows the Customer to continue to use all SVT Services in all material respects.

    Level 3 Response:

    The Supplier shall provide a permanent correction as soon as practicable and no later than 4 Business Days after the Supplier’s receipt of the Support Request.

    3

    Minor Error:

    An isolated or minor error in the SVT Services that:

    a)

    does not significantly affect the SVT Services;

    b)

    may disable only certain non-essential functions; or

    c)

    does not materially impact the Customer's business performance.

    Level 1 Response:

    Acknowledgment of receipt of the Support Request within 4 business hours.

    Level 2 Response:

    The Supplier shall provide a permanent correction within 5 Business Days after the Level 1 Response time has elapsed.

    4.2

    The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times.

    4.3

    The Supplier shall give the Customer regular updates of the nature and status of its efforts to correct (or, where, relevant, mitigate) any issue.

    4.
    Remedies

    5.1

    5.1 If a Solution is not provided within the relevant Service Level response time, the Customer may escalate the Support Request to the parties' respective senior management identified below:

    James Skelland – Chief Technology Officer

    Craig Jackson – Chief Delivery Officer

    Karen Jones – Chief Operating Officer

Schedule 2    Data Processing Agreement

This data processing agreement ("DPA") is intended to ensure that Customer and Supplier each comply with applicable Data Protection Laws insofar as the foregoing entail the processing of personal data.

  • 1.
    INTERPRETATION

    1.1

    In this DPA the following capitalised terms shall have the meanings set out below:

    Applicable Laws

    all laws or regulations, regulatory policies, guidelines or industry codes which apply to Customer Personal Data including the Data Protection Laws;

    Data Protection Laws

    means any data protection, privacy or similar laws that apply to data Processed in connection with the SVT Services, including the EU General Data Protection Regulation 2016/679 (“GDPR”), Data Protection Act 2018, the UK GDPR (being GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018) or Privacy and Electronic Communications Directive 2002/58 or any amendments to them or replacements of them, including, without limitation, any other variations as may be required following or pursuant to Brexit;

    Customer Personal Data

    means any Personal Data Processed by or on behalf of Supplier in connection with the provision of the SVT Services or otherwise for, or on behalf of or at the direction of Customer; and

    Sub-Processor

    means any entity or person (excluding an employee of Supplier) appointed by or on behalf of Supplier to Process Customer Personal Data on behalf of Customer or the Supplier.

    1.2

    The terms “Controller”, “Processor”, “Data Subject”, “Personal Data Breach” and “Processing” shall have the meanings given to them in Data Protection Laws.

    2.
    GENERAL

    2.1

    In the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including other terms to this Agreement and including (except where explicitly agreed otherwise in writing by reference to this Clause ‎2.2, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.

    3.
    OBLIGATIONS OF THE PARTIES

    3.1

    The Parties acknowledge that Customer is acting as the Controller in respect of the Processing of Customer Personal Data and Supplier will be acting as Processor in respect of the same.

    3.2

    Customer instructs Supplier to Process Customer Personal Data as reasonably necessary for the provision of the SVT Services. Details of the nature and purpose of the Processing shall be further described in Annex 1 to this DPA.

    3.3

    Both Parties will comply with all applicable requirements of Data Protection Laws.

    3.4

    Without prejudice to the generality of clause 3.3, the Customer will ensure that it has all consents and notices in place as required by Applicable Laws to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this DPA so that the Supplier may lawfully use, process and transfer the personal data in connection with the delivery of the SVT Services and/or in accordance with this DPA.

    3.5

    In relation to any Customer Personal Data, Supplier shall:

    3.5.1

    Process, and only permit the Processing of, Customer Personal Data on and in accordance with Customer's documented instructions, including in respect of transfers of Customer Personal Data to a country outside of the UK or European Economic Area (EEA) (for the avoidance of doubt Supplier shall not transfer or permit the transfer of Customer Personal Data to a country outside of the UK or EEA which is not the subject of a finding of adequacy by the European Commission or similar finding by the UK Government or applicable competent regulatory authority, unless in accordance with Data Protection Laws, which may include the Supplier entering into such form of model standard contractual clauses approved by the European Commission (or UK Government or applicable competent regulatory authority) as are appropriate for such transfer) unless such Processing and/or transfer is required by Applicable Laws in which case Supplier shall, to the extent permitted by Applicable Laws, inform Customer of that legal requirement prior to the relevant Processing of Customer Personal Data;

    3.5.2

    take reasonable steps to ensure the reliability of its staff who have access to Customer Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;

    3.5.3

    taking into account the nature, scope, context and purpose of the Processing, implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and UK GDPR;

    3.5.4

    taking into account the nature of the Processing and the information available to Supplier, Supplier shall assist Customer, at Customer’s cost (i) by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligations to respond to requests to exercise Data Subject rights laid down in Chapter III of the GDPR and UK GDPR and (ii) in ensuring compliance with Customer ’s obligations pursuant to Articles 32 to 36 of the GDPR and UK GDPR;

    3.5.5

    notify Customer without undue delay on becoming aware of a Personal Data Breach relating to Customer Personal Data.

    3.5.6

    immediately inform Customer if, in its opinion, an instruction of Customer infringes Data Protection Laws; and

    3.5.7

    make available to Customer information required by Customer to the extent necessary demonstrate compliance with the obligations laid down in this DPA, including to allow for and contribute to reasonable audits, conducted by Customer or an auditor designated by Customer, on a minimum of five Business Days’ notice. Such audits shall be conducted at Customer's sole cost.

    4.
    SUBPROCESSING OF CUSTOMER PERSONAL DATA

    4.1

    Customer hereby grants a general authorisation to Supplier to engage Sub-processors. Supplier shall inform Customer of any intended changes concerning the addition or replacement of Supplier Sub-processors. Upon notification regarding Supplier’s intention to engage a new Sub-Processor, Customer may object to such engagement on reasonable data protection related grounds by notifying Supplier promptly in writing within five business days after receipt of the notice. In the event Customer objects to a new Sub-Processor, Supplier may at its discretion (i) implement commercially reasonable changes in the configuration or use of the SVT Services to avoid Processing of Customer Personal Data by the proposed new Sub-Processor; (ii) address the Customer’s grounds for objection with the new Sub-processor or (iii) upon written notice to the Customer, terminate the Agreement immediately.

    4.2

    With respect to each Sub-Processor engaged by the Supplier, Supplier shall ensure that the arrangement between Supplier and Sub-Processor is governed by a written contract including: terms which offer at least the same level of protection for Customer Personal Data as those set out in this DPA and wider Agreement; and terms which meet the requirements of Article 28(3) of the GDPR and UK GDPR.

    5.
    DATA SUBJECT RIGHTS

    5.1

    Taking into account the nature of the Processing, Supplier shall assist Customer by implementing all appropriate and commercially reasonable technical and organisational measures for the fulfilment of Customer’s obligations to respond to requests to exercise Data Subject rights under Data Protection Laws.

    5.2

    Supplier’s obligation pursuant to Clause ‎5.1 above shall include assisting Customer, upon Customer’s documented instructions and at Customer’s cost, without undue delay to respond to a Data Subject’s request to exercise their rights under Chapter 3 of the GDPR and UK GDPR.

    5.3

    Supplier shall:

    5.3.1

    notify Customer as soon as possible if Supplier or any of its Sub-Processors receives a request from a Data Subject under any Data Protection Laws in respect of Customer Personal Data; and

    5.3.2

    ensure that Supplier shall only respond to that request on the documented instructions of Customer or as required by Applicable Laws.

    6.
    TERMINATION

    6.1

    Subject to Clause ‎6.2, this DPA shall continue in force until the cessation of Processing of Customer Personal Data by or on behalf of Supplier.

    6.2

    Termination of this DPA will not affect any rights or remedies of either Party which exist prior to the date of termination.

    6.3

    Following termination of this DPA, Supplier shall at its own expense, at the written request of Customer, either: delete all copies of Customer Personal Data it holds, or return all Customer Personal Data it holds to Customer.

    6.4

    Clauses 1, 6.4, 7, 8 and 9 will survive termination.

Annex 1 to Schedule 2

This Annex includes certain details of the Processing of Personal Data as required by Article 28(3) of the GDPR and UK-GDPR.

Subject matter and duration of the Processing of Personal Data: The subject matter and duration of the Processing of Personal Data, as set out in the Agreement and instructed in writing by the Customer from time to time.
The nature and purpose of the Processing of Personal Data: Performance marketing multi-touch attribution services
The types of Personal Data to be Processed: Tracking data, including: Referrer URL, Landing URL, Timestamp, Randomly Generated Cookie ID, Order ID, Order Amount, Affiliate ID, Total Comission by Day, Channel, Campaign Info.
The categories of Data Subject to whom Personal Data relates: SVT end users or consumers (i.e. Customer, advertiser and/or publisher website visitors)
The obligations and rights of the Customer: The obligations and rights of the Customer are set out in the Agreement.