PLATFORM TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms shall have the following meanings:
“Active Digital Identity” or “ADI” means a unique online identity and associated set of data provided and operated by EVRYTHNG at its discretion on the EVRYTHNG Product Cloud and pertaining to a Customer Product or system, identified by a URL issued by the EVRYTHNG Product Cloud and accessible by authorised third parties using application programming interfaces provided by EVRYTHNG;
“ADI Operating Period” means the period of time from the Commissioning Date for which an ADI is made available by EVRYTHNG to operate Customer Products or Customer Applications interacting with that ADI on the EVRYTHNG Product Cloud as set out in the Service Description or applicable Order Form;
“Bespoke Deliverables” means any materials created, prepared, made or produced by EVRYTHNG, including application code, graphic designs or configuration scripts that are developed specifically for the Customer under a Statement of Work on a professional services basis;
“Commissioning Date” means the date and time at which the applicable ADI is operationally configured to operate active services for Customer Products or Customer Applications;
“Complete Agreement” means the combination of these Platform Terms and Conditions and an Order Form referencing the Customer Agreement, a Master Platform Agreement or the Platform Terms and Conditions, where multiple Order Forms will constitute multiple Complete Agreements;
“Confidential Information” means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of a Complete Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party. It does include the terms of any applicable Complete Agreement;
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures” have the meaning provided in the Data Protection Legislation;
“Customer Data” means data and information provided directly or indirectly by Customer, generated by Customer Products, Customer Applications, employees or agents of the Customer, or by End Users of the Customer Products and that is processed by the EVRYTHNG Product Cloud;
“Customer Application” means any software, system, application or program or other such units of software code created by the Customer or agents authorised by it to interact with the EVRYTHNG Product Cloud and the Customer Data;
“Customer Materials” means any software (including any modifications and/or documentation related to it), Customer Application, code, product, invention, discovery, improvement, document, content and/or other material created, prepared, made, or produced by Customer prior to or during the term of a Complete Agreement;
“Customer Product” means a single physical product item or a group of physical product items or components that are together identified by an organizing descriptor (like an SKU), with which digital services or applications are to be provided by the Customer or third parties authorised by the Customer using the EVRYTHNG Product Cloud;
“Data Protection Legislation” means all applicable U.S. federal, state and local, as well as the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
“End User” means consumers and other third-party users of the Customer Products and/or Customer Applications who have an agreement with the Customer to use such Customer Products or Customer Applications;
“EVRYTHNG Materials” means any software (including any modifications and/or documentation related to it), code, product, invention, discovery, improvement, document, content and/or other material created, prepared, made, or produced by EVRYTHNG prior to or during the term of a Complete Agreement;
“EVRYTHNG Product Cloud” means the multi-tenant software system operated by EVRYTHNG on the internet for the purpose of managing information from and about Customer Products through Active Digital Identities, including associated software tools, documentation and user interfaces as described in the Service Description;
“Fees” means the fees stated in an Order Form payable by the Customer in accordance with clause 7 of these Platform Terms and Conditions;
“Group Company” means in relation to each of the parties:
(i) any parent company of that party; and
(ii) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same person or group of persons as that party;
“High Risk Activities” means applications where the use or failure of the EVRYTHNG Product Cloud, and ADI and/or the Services could lead to death, personal injury or extensive catastrophic environmental damage. “High Risk Activities” include, without limitation, applications such as the operation of nuclear facilities, air traffic control, or life support systems;
“Intellectual Property Rights” means all copyright and rights in the nature of copyright, database rights, design rights, patents and trademarks (including all goodwill in them), applications for any of the above, moral rights, know-how, confidential information, and/or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom, United States, Canada or any other part of the world;
“Product Tag” means a physical identifier, sensor or antenna that may be associated with an ADI and which is printed, attached or otherwise applied to the Customer Product. Including but not limited to printed 1D and 2D barcodes, watermark codes, NFC and RFID tags, Bluetooth tags, or other printed symbols or sensor devices.
“Operator Login” means a login credential issued by EVRYTHNG to access the EVRYTHNG Product Cloud to an individual authorised by Customer and which provides the individual with access to a Platform Account;
“Order Form” means an order form signed by the parties containing specific terms which references the Customer Agreement, a Master Platform Agreement or the Platform Terms and Conditions and which may include any Service Level Agreement, Service Description and/or Statement of Work.
“Platform Account” means a single designated account held in the EVRYTHNG Product Cloud for the Customer and which is used to operate the ADIs and Operator Logins applicable to the Customer and credentials for access to Customer Data by Customer Applications and Customer Products;
“Platform Module” means applicable scopes of EVRYTHNG Product Cloud services as described in the Service Description and which the Customer has subscribed to use of through an Order Form;
“Service Level Agreement” or “SLA” means the service levels specified at evrythng.com/sla and as updated by EVRYTHNG from time to time provided that such updates shall not rehttps://evrythng.com/sladuce the quality of service provided to the Customer;
“Services” means any services specified on an Order Form as further described in the Service Description;
“Service Description” means the description of services offered by EVRYTHNG and described at evrythng.com/service-description as updated by EVRYTHNG from time to time provided that such updates shall not reduce the quality of service provided to the Customer;
“Services Effective Date” means the effective date stated on an applicable Order Form;
“Statement of Work” or “SOW” means a statement of work signed by the parties containing project specific terms which references an applicable Order Form;
“Term” means the period of time specified in a Complete Agreement and in accordance with clause 8 of these Platform Terms and Conditions.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
2. EVRYTHNG OBLIGATIONS
2.1 EVRYTHNG undertakes that the Services will be performed and the EVRYTHNG Product Cloud and ADIs will be provided, substantially in accordance with the Order Form, the SLA and with reasonable skill and care.
2.2 The undertaking in clause 2.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to EVRYTHNG’s instructions, or modification or alteration of the Services by any party other than EVRYTHNG or EVRYTHNG’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, EVRYTHNG 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 2.1.
3. CUSTOMER OBLIGATIONS
3.1 Customer shall:
(a) promptly provide EVRYTHNG with all complete and accurate information, cooperation, access, facilities, equipment and assistance reasonably required by EVRYTHNG in connection with EVRYTHNG’s obligations under the Platform Terms and Conditions;
(b) use only the Platform Module(s) to which the Customer has subscribed through an Order Form;
(c) comply with usage guidelines as specified in the SLA;
(d) keep secure and confidential any pin codes, API keys and passwords necessary for accessing the EVRYTHNG Product Cloud; and
(e) ensure that it has in place an enforceable agreement with each of its End Users (as employees, third parties or otherwise) that provides EVRYTHNG with all necessary consent to enable it to perform its obligations under a Complete Agreement in accordance with applicable law (including Data Protection Legislation) and provides EVRYTHNG with at least the same level of protection as is provided by Customer to EVRYTHNG under a Complete Agreement.
4. CUSTOMER RESTRICTIONS
4.1 Without limitation, the Customer shall ensure End Users do not:
(a) post or transmit to or from the EVRYTHNG Product Cloud anything which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data);
(b) attempt to access information and services of third parties with or through the EVRYTHNG Product Cloud to which authorised access has not been provided; or
(c) use an ADI, EVRYTHNG Product Cloud or any of the Services for any High Risk Activities.
4.2 Customer shall ensure that all third parties (including, without limitation, third party software developers or third party data processors) acting on behalf of Customer shall not:
(a) post or transmit to or from the EVRYTHNG Product Cloud anything which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data);
(b) exceed usage limitations as specified in the SLA;
(c) attempt to access information and services of third parties with or through the EVRYTHNG Product Cloud to which authorised access has not been provided;
(d) use the EVRYTHNG Product Cloud in any way which may cause, or be likely to cause, access to or use of the EVRYTHNG Product Cloud to be interrupted, damaged or impaired in any way;
(e) use an ADI, EVRYTHNG Product Cloud or any of the Services for any High Risk Activities;
(f) create any derivative works of the EVRYTHNG Product Cloud (for the avoidance of doubt configurations of the EVRYTHNG Product Cloud by the Customer, associated scripts and use of application programming interfaces, and Customer Applications shall not be deemed to be derivative works);
(g) redistribute, encumber, sell, rent, lease or transfer the EVRYTHNG Product Cloud, other than as provided for under a Complete Agreement; or
(h) probe, scan, or test the vulnerability of the EVRYTHNG Product Cloud or any network connected to the EVRYTHNG Product Cloud, or breach the security or authentication measures on the EVRYTHNG Product Cloud or any network connected to the EVRYTHNG Product Cloud without prior written consent.
4.3 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(e) promotes unlawful violence;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(g) is otherwise illegal or causes damage or injury to any person or property;
and EVRYTHNG reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
4.4 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:
(1) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the EVRYTHNG Product Cloud and/or Services in any form or media or by any means; or
(2) attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any parts of the Software; or
(b) access all or any part of the EVRYTHNG Product Cloud and Services in in order to build a product or service which competes with the EVRYTHNG Product Cloud and/or Services; or
(c) use the EVRYTHNG Product Cloud and/or Services to provide services to third parties which would compete with the EVRYTHNG Product Cloud or Services.
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the EVRYTHNG Product Cloud and Services and, in the event of any such unauthorised access or use, promptly notify EVRYTHNG.
5 INTELLECTUAL PROPERTY RIGHTS AND GRANT OF LICENCE
5.1 EVRYTHNG shall own all Intellectual Property Rights in and to the EVRYTHNG Product Cloud and the EVRYTHNG Materials.
5.2 EVRYTHNG grants to Customer a non-exclusive, non-sublicensable (other than in accordance with the terms of a Complete Agreement) licence for the Service Term to access and use the EVRYTHNG Product Cloud solely,
(a) for the number of Operator Logins specified in the applicable Order Form;
(b) through application programming interfaces (API’s) approved by EVRYTHNG; and
(c) in accordance with these terms and conditions.
5.3 EVRYTHNG grants to Customer a non-exclusive, revocable and non-sublicensable (other than in accordance with the terms of these Platform Terms and Conditions) licence to use the EVRYTHNG Materials solely to fulfil Customer’s obligations under a Complete Agreement in accordance with its terms.
5.4 EVRYTHNG grants to Customer a worldwide, exclusive, royalty free and perpetual license to use the Bespoke Deliverables and EVRYTHNG shall not resell the Bespoke Deliverables or permit the use of the Bespoke Deliverables to other customers.
5.5 Customer shall own all Intellectual Property Rights in and to the Customer Materials.
5.6 Customer grants to EVRYTHNG a non-exclusive and non-sublicensable licence for the Service Term to use Customer Materials solely to fulfil EVRYTHNG’s obligations under a Complete Agreement in accordance with its terms.
5.7 All goodwill arising from the use by Customer of the EVRYTHNG Product Cloud and the EVRYTHNG Materials shall belong to EVRYTHNG. All goodwill arising from the use by EVRYTHNG of the Customer Materials shall belong to Customer.
5.8 Except to the extent expressly stated otherwise in a Complete Agreement, neither party shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party, or the other party’s licensors.
6.1 Subject to clause 6.9 below, Customer shall own all Intellectual Property Rights in and to the Customer Data. EVRYTHNG shall provide Customer Data to Customer during the Term. EVRYTHNG shall not retain, monetize or distribute any Customer Data which may be obtained through the EVRYTHNG Product Cloud without the written consent of Customer.
6.2 Customer grants to EVRYTHNG a non-exclusive and non-sublicensable licence for the Service Term to use Customer Data solely to fulfil EVRYTHNG’s obligations under a Complete Agreement in accordance with its terms.
6.4 Both parties will comply with all applicable requirements of the Data Protection Legislation and EVRYTHNG will only process Customer Personal Data in accordance with the Data Processing Agreement available at evrythng.com/data-processing-agreement. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. EVRYTHNG shall at all times adhere to the ISO/IEC27001 standard.
6.5 Subject always to the other provisions of this clause 6, EVRYTHNG shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies. EVRYTHNG will be free (during and after the Service Term) to (i) use such information and data to enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, and (ii) maintain anonymised data, which is obtained in the course of performing Services, in EVRYTHNG’s databases for continuous product enhancement, validation of its professional norms and standards development, and for benchmarking and industry studies, provided that (i) such data will only be used or disclosed in an aggregated or other de-identified form (not capable of identifying any individual), and (ii) EVRYTHNG will ensure that where such data is derived from Customer Data neither Customer nor any specific transaction or event will be identifiable from any such data or information.
7.1 Customer shall pay the Fees to EVRYTHNG as stated on the applicable Order Form, in accordance with the terms set forth therein, including, for the avoidance of doubt, any fees incurred through Customer’s use of the EVRYTHNG Product Cloud exceeding the services volume parameter specified in the Order Form. Where Customer purchases Product Tags directly from EVRYTHNG pursuant to an Order Form, EVRYTHNG will charge for the Product Tags separately from the ADI cost.
7.2 Customer agrees to pay the Fees without deduction or set off and in accordance with the terms specified in these Platform Terms and Conditions and in each Order Form.
7.3 The Fees shall be paid by Customer to EVRYTHNG by bank transfer into the bank account specified in the applicable Order Form or such other bank account as nominated by EVRYTHNG to the Customer from time to time, and in accordance with the terms herein. If the Customer’s use of the Services exceeds the volume capacity set forth in an Order Form or otherwise requires the payment of additional fees (per the terms of an Order Form), or if the parties have agreed to EVRYTHNG’s provision of additional services as per each Order Form, the Customer shall be billed for such usage and the Customer agrees to pay the additional fees in the manner provided herein or as otherwise agreed between the parties in writing. EVRYTHNG reserves the right to change the Fees or applicable charges and institute new charges and Fees at the end of each Term upon ninety (90) days prior notice to the Customer (which may be sent by email). For avoidance of doubt, each Order Form forms a separate agreement with the Customer and agreeing a certain fee schedule and structure in one Order Form creates no obligation for EVRYTHNG to offer the same fee structure and fee schedule in a different Order Form.
7.4 If the Customer believes that EVRYTHNG has billed the Customer incorrectly, the Customer must contact EVRYTHNG no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment of credit. Inquiries should be directed to EVRYTHNG’s customer support department.
7.5 All Fees are non-refundable except as specified herein.
7.6 All sums stated under a Complete Agreement are exclusive of amounts in respect of value added tax or any equivalent tax chargeable for the time being in the UK or elsewhere (VAT). Where any taxable supply for VAT purposes is made under a Complete Agreement by EVRYTHNG to the Customer, the Customer will, on receipt of a valid VAT invoice from EVRYTHNG, pay to EVRYTHNG such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of Services.
7.7 All payments due to EVRYTHNG shall be in US Dollars or such currency as specified on the Order Form.
7.8 EVRYTHNG will invoice the Customer for Fees, each invoice to include such supporting information as is reasonably required by Customer to verify the accuracy of the invoice. Full payment for invoices must be received by EVRYTHNG no later than thirty (30) days after receipt of the invoice, except in the event that Customer disputes an invoice in good faith, in which case the disputed amount may be withheld pending resolution provided that Customer notifies EVRYTHNG of the dispute along with full reasons for it before the due date for payment. Without limiting EVRYTHNG’s other rights under a Complete Agreement (including termination), undisputed properly invoiced amounts not paid by the due date shall entitle EVRYTHNG to charge interest at the annual rate of 8.5% on any outstanding balance, or the maximum permitted by law, whichever is lower, commencing 15 days after the due date and continuing until payment is received in full by EVRYTHNG, plus EVRYTHNG may charge Customer for all reasonable expenses of collection provided that it has notified Customer of the non-payment and given Customer a reasonable opportunity to remedy the issue. EVRYTHNG reserves the right to suspend the supply of Services and access to the EVRYTHNG Product Cloud where any amounts due under a Complete Agreement are overdue until such amounts have been paid in full (together with any accrued interest).
7.9 Unless agreed in advance by the parties, all rates detailed in an Order Form do not include travel, accommodation, subsistence and the cost of materials and third-party services or reasonable out of pocket expenses. Customer shall reimburse EVRYTHNG for any reasonable expenses that EVRYTHNG necessarily incurs in connection with the provision of the Services.
8 TERM AND TERMINATION
8.1 The term of each Complete Agreement shall begin on the applicable “Services Effective Date” and continue for the “Service Term”, in each case as specified in the applicable Order Form.
8.2 Either party may terminate a MPA upon written notice to the other party if no Order Form is in effect. In addition to any other remedies it may have, either party may, upon giving written notice to the other, suspend performance of and/or terminate a Complete Agreement with immediate effect if:
(a) the other party is in material breach of the Platform Terms and Conditions and such breach is incapable of remedy;
(b) the other party is in breach of the Platform Terms and Conditions and, where such breach is capable of remedy, fails to remedy such breach within thirty (30) days of being so requested;
(c) regardless of whether the breach could be regarded as material or is capable of remedy, Customer is in breach of clause 4 of these Platform Terms and Conditions;
(d) an event of force majeure under clause 15.13 of these Platform Terms and Conditions continues for a period of thirty (30) consecutive days or more;
(e) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is in noncompliance with debt covenants, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or
(f) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
8.3 EVRYTHNG may, upon giving 10-business days written notice to Customer and in accordance with clause 7.8, suspend all or any portion of the Services if any amount due under an applicable Complete Agreement remains unpaid for a period in excess of forty-five (45) days past due.
8.4 Upon the expiration or termination of a Complete Agreement for any reason:
(a) Except for material breach by EVRYTHNG, Customer shall pay EVRYTHNG any outstanding sums due under that Complete Agreement within thirty (30) days;
(b) all rights and licences granted for the Service Term by each party under that Complete Agreement shall cease immediately
(c) EVRYTHNG shall make all Customer Data available to the Customer for secure electronic retrieval for a period of thirty (30) days after the date of termination but, thereafter, EVRYTHNG may, but is not obligated to, delete stored Customer Data;
(d) if requested, each party shall promptly return to the other party, or destroy and confirm in writing the destruction of, all Confidential Information disclosed to it by the other party, and EVRYTHNG shall make available or return (at Customer’s direction) all Customer Data in its possession, custody or control;
(e) the ADI Operating Period shall cease immediately; and
(f) It is noted that where the Complete Agreement is terminated due to material breach by Customer, EVRYTHNG will not provide a refund of the remaining unused portion of the Services fees under that Complete Agreement.
9.1 Each party warrants to the other that:
(a) it has the full power, right and authority to enter into these Platform Terms and Conditions; and
(b) that it will use reasonable care and skill in complying with its obligations under each these Platform Terms and Conditions.
9.2 EVRYTHNG shall not be liable for breach of any of the warranties or other terms in a Complete Agreement to the extent that the breach arises from:
(a) use of the EVRYTHNG Product Cloud and/or Services other than in accordance with the SLA;
(b) any alterations to the EVRYTHNG Product Cloud and/or Services carried out by Customer, its sub-licensees, contractors, employees or agents;
(c) any problem with hardware and/or software provided by the Customer, its sub-licensees, employees or agents for use with the EVRYTHNG Product Cloud and/or Services, or from which they are accessed by Customer, its sub-licensees, contractors, employees, or agents or with any equipment connected downstream from that computer;
(d) use of the EVRYTHNG Product Cloud and/or Services in combination with any other hardware, software or services, unless this use has been approved by EVRYTHNG in writing.
9.3 No conditions, warranties or other terms apply to the EVRYTHNG Product Cloud and/or the Services or to any other goods or services supplied by EVRYTHNG under a Complete Agreement unless expressly set out in that Complete Agreement. Subject to clause 12.1, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
10 INDEMNIFICATION BY EVRYTHNG
10.1 Subject to clause 10.3 and the limitations set out in clause 12, EVRYTHNG shall indemnify Customer from and against any losses, liability, damages, and expenses (including all legal fees) that Customer incurs or are awarded against Customer as a result of (1) any claim against Customer by a third party that its use of the EVRYTHNG Product Cloud and/or Services infringes that third party’s Intellectual Property Rights; or (2) third-party claims arising out of a data breach or out of the dissemination of personally identifiable information if caused by EVRYTHNG (and not by Customer, its agents or end users), and in such amount as is determined and finally awarded by a court of competent jurisdiction, provided that:
(a) EVRYTHNG is given prompt notice of such claim;
(b) EVRYTHNG is given sole authority to defend or settle the claim, but shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the Customer or any of its agents or imposes additional obligations on the Customer or any of its agents, without the prior express written consent of the Customer, which consent shall not be unreasonably withheld or delayed; and
(c) Customer provides reasonable co-operation to EVRYTHNG in the defence and settlement of such claim, at EVRYTHNG’s expense.
10.2 In the defence or settlement of the claim, EVRYTHNG may, after consultation with Customer, at its option and expense:
(a) procure for Customer the right to continue using the EVRYTHNG Product Cloudand/or Services (or any part thereof) in accordance with the terms of the applicable Complete Agreement; or
(b) replace or modify the EVRYTHNG Product Cloud and/or Services or the infringing part thereof so that the same becomes non-infringing; or
(c) suspend Customer’s use of any of the EVRYTHNG Product Cloud and/or Services which are alleged, or believed by EVRYTHNG, to infringe any third party’s Intellectual Property Rights.
If any suspension under this clause continues for more than 30 days, Customer may, at any time until use of the applicable EVRYTHNG Product Cloud and/or Services is reinstated, terminate these EVRYTHNG Platform Terms & Conditions immediately upon written notice and be entitled to a pro-rata refund of the remaining unused portion of the Services fees measured from the effective date of such termination.
10.3 EVRYTHNG shall have no obligations or liability to indemnify Customer under a Complete Agreement if the alleged infringement arises solely from:
(a) Customer’s products or services, or those of its sub licensees, employees, agents or contractors
(b) a modification requested by the Customer of the EVRYTHNG Product Cloud and/or Services by anyone other than EVRYTHNG;
(c) Customer’s use of the EVRYTHNG Product Cloud and/or Services otherwise than in accordance with the applicable Complete Agreement;
(d) Customer’s marketing, advertising, distribution or use of the EVRYTHNG Product Cloud and/or Services in a manner contrary to the written instructions given to Customer by EVRYTHNG;
(e) Customer’s marketing, advertising, distribution or use of the EVRYTHNG Product Cloud and/or Services after notice of the alleged or actual infringement from EVRYTHNG or any appropriate authority;
10.4 This clause 10 states the Client’s sole and exclusive rights and remedies, and EVRYTHNG’s entire obligations and liability, in relation to Intellectual Property Rights in the EVRYTHNG Product Cloud and/or Services.
11 INDEMNIFICATION BY CUSTOMER
11.1 Subject to the limitations set out in clause 12, Customer shall indemnify EVRYTHNG from and against any losses, liability, damages, and expenses (including all legal fees) that EVRYTHNG incurs or are awarded against EVRYTHNG as a result of any claim against EVRYTHNG by a third party to the extent that EVRYTHNG’s use of the Customer Materials and/or Customer Data in accordance with the terms of the applicable Complete Agreement provided that:
(a) Customer is given prompt notice of such claim;
(b) Customer is given sole authority to defend or settle the claim; and
(c) EVRYTHNG provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer’s expense.
12 LIMITATION OF LIABILITY
12.1 Nothing in a Complete Agreement shall exclude or limit either party’s liability for:
(a) death or personal injury resulting from the negligence of either party or their servants, agents or employees;
(b) fraud or fraudulent misrepresentation;
(c) misuse of Confidential Information;
(d) payment of sums properly due and owing to the other in the course of normal performance of the Complete Agreement.
12.2 Subject to clauses 10 and 11 (Indemnity) and 12.1, neither party shall be liable whether in contract, tort (including, without limitation, negligence or breach of statutory duty), pre-contract or other representations (other than fraudulent misrepresentation) or otherwise arising out of or in connection with a Complete Agreement for:
(a) loss of profit;
(b) loss of business;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of or corruption of data or information;
(f) loss or damage resulting from third party claims;
(g) loss of goodwill or reputation;
(h) pure economic loss;
(i) special, indirect or consequential losses; or
(j) costs, damages, charges or expenses however arising under this agreement.
in any case, whether or not such losses were within the contemplation of the parties at the date of the applicable Complete Agreement, suffered or incurred by that party arising out of or in connection with the provisions of, or any matter under, that Complete Agreement.
12.3 EVRYTHNG shall have no liability for any Product Tags Customer purchases from a third party.
12.4 Except as provided in clauses 12.1, 12.2 and 12.5, each party’s total aggregate liability under or in connection with each Complete Agreement (whether in contract, tort or for any other reason) and these EVRYTHNG Platform Terms & Conditions shall be limited to 200% of the Fees due to EVRYTHNG under the Complete Agreement in the twenty four calendar months immediately prior to the event giving rise to the alleged liability (or the expired part of it if the claim is made prior to the two year anniversary of the Service Term).
12.5 The limitations set out in clause 12.4 shall not apply in the case of a party’s indemnity obligations or any breach under clause 14 (confidentiality) or the Data Processing Agreement for which the aggregate liability shall be limited to the greater of (i) the aggregate amount paid or payable by Customer during the twelve (12) months immediately preceding notice of the claim by the other party, and (ii) $2,000,000.
13.1 EVRYTHNG shall be entitled to list Customer and use the Customer’s logo on its websites, press releases and other marketing materials, identifying Customer as a customer of EVRYTHNG and the general nature of the relationship between the parties. EVRYTHNG shall not without written approval of the Customer disclose to third parties’ details of the Customer’s use of the platform, including but not limited to volumes of ADIs, End Users, Customer Product performance.
14.1 The recipient of any Confidential Information will not disclose that Confidential Information, except to Group Companies, employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfil obligations under the Complete Agreement and these EVRYTHNG Platform Terms & Conditions, and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
15.1 Neither party shall be in breach of a Complete Agreement nor liable for delay in performing, or failure to perform, any of its obligations under a Complete Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
15.2 A Complete Agreement is not assignable, transferable or sublicensable by the Customer except with EVRYTHNG’s prior written consent.
15.3 EVRYTHNG may transfer, assign or subcontract its rights and obligations under a Complete Agreement in whole or in part without the prior written consent of the other party. If EVRYTHNG sub-contracts any obligations under a Complete Agreement, EVRYTHNG remains fully liable for all such sub-contracted obligations and accepts full liability as between the parties for the actions and/or inactions of its subcontractors as if such actions and/or inactions were its own.
15.4 Each party agrees that it shall have no remedies in respect of any statement, representation or warranty (whether made innocently or negligently) that is not set out in a Complete Agreement and these Platform Terms and Conditions.
15.5 Failure or delay in exercising any right or remedy under a Complete Agreement and these Platform Terms and Conditions shall not constitute a waiver or such (or any other) right or remedy.
15.6 Except as expressly stated otherwise, nothing in the Complete Agreement and these Platform Terms and Conditions shall create an agency, partnership or joint venture of any kind between the parties.
15.7 Except as expressly stated otherwise, nothing in a Complete Agreement and these Platform Terms and Conditions shall create or confer any rights or other benefits in favour of any person other than a party to the Complete Agreement and these Platform Terms and Conditions.
15.8 The invalidity, illegality or unenforceability of any term of a Complete Agreement and these Platform Terms and Conditions shall not affect the continuation in force of the remainder of the applicable Complete Agreement and these Platform Terms and Conditions.
15.9 Each Complete Agreement may be executed in two counterparts each of which shall be deemed an original and which, when taken together, shall constitute one and the same instrument, but a Complete Agreement shall not be binding upon the parties until it has been signed by both parties.
15.10 Any notice or other communication required to be given to a party under or in connection with a Complete Agreement and these Platform Terms and Conditions shall be in writing and shall be:
(i) delivered by hand or sent by pre-paid first-class post or other next working day delivery service providing proof of delivery; or
(ii) sent by email
at the address set out in the applicable Order Form or such other address as the recipient may designate by notice given in accordance with this clause.
15.11 Any notice or communication shall be deemed to have been received
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or
(ii) if sent by pre-paid first class post or other next Business Day delivery services at 9.00 am Eastern Standard Time on the second business day after posting or at the time recorded by the delivery service, or
(iii) if sent by email, at the time of transmission, or if this time falls outside business hours in the place of receipt, when business resumes. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. In this clause 15.12, business hours means 9am to 5pm Monday to Friday on a day that is not a public holiday in the place of receipt.
15.12 Each party’s performance under a Complete Agreement and these Platform Terms and Conditions shall be subject to any contingency beyond the control of the parties, including, but not limited to force majeure events such as strikes, lock-outs, labour disputes and shortages, weather-related natural disasters, epidemics or pandemics, civil disturbances and riots, economic disasters or severe economic depression, delays in transportation, government action or interference (including, but not limited to currency and price controls, or detention or seizure of goods by local, state or government authorities). Except with respect to payment obligations, the parties to a Complete Agreement are to be relieved of any contractual obligations to each other for the damages resulting from the contingencies envisaged within this clause 15.12. For the avoidance of doubt, a contingency does not waive or suspend Customer’s payment obligations unless EVRYTHNG is in default of its obligations under a Complete Agreement.
15.13 A party affected by a contingency shall:
(i) as soon as reasonably practicable notify the other party in writing of the contingency, the date on which it started, its likely or potential duration and the effect of the contingency on its ability to perform its contractual obligations under a Complete Agreement; and
(ii) use all reasonable endeavours to mitigate the effect of a contingency on the performance of its contractual obligations.
15.14 Captions and headings of the sections and paragraphs of these Platform Terms and Conditions are intended solely for convenience and no provision is to be construed by reference to the caption or heading of any section or paragraph.
15.15 These Platform Terms and Conditions and each Complete Agreement are governed by the Laws of England & Wales and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Platform Terms and Conditions, any Order Form or Complete Agreement.