When you (meaning the entity or firm that you’re authorised to represent) creates a subscription to use the Intelligent Assessments service, you become our Client and you enter into a subscription agreement (agreement) on the terms set out below with Intelligent Assessments Limited incorporated and registered in England and Wales with company number 14836690 whose registered office is at 124 City Road, London, England, EC1V 2NX (Intelligent Assessments)
The agreement includes the Subscription Details set out during the online subscription process, the Agreed Terms set out below.
If there is any conflict or ambiguity between the terms of these listed documents, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
AGREED TERMS
1. INTERPRETATION1.1 The definitions and rules of interpretation in this clause apply in this agreement.Assessment Template: a reusable template that defines the assessment and associated report that can be used by the Client Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation, as further described in clause 2.3(d).Business Day: a day other than a Saturday, Sunday or public holiday in England.Confidential Information: any information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8.1.Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.Client Data: the data inputted by the Client, Authorised Users, or Intelligent Assessments on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services.Data Protection Legislation:a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Client or Provider is subject, which relates to the protection of personal data.Documentation: the document made available to the Client by Intelligent Assessments online via www.intelligentassessments.ai or such other web address notified by Intelligent Assessments to the Client from time to time which sets out a description of the Services and the user instructions for the Services.Domestic Law: the law of the United Kingdom or a part of the United Kingdom.Effective Date: the date of this agreement.EU GDPR: the General Data Protection Regulation ((EU) 2016/679).EU Law: the law of the European Union or any member state of the European Union. Initial Subscription Term: the initial term of this agreement as set out in the Subscription Details.Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.On-boarding Services: the services described in the Subscription Details or as otherwise agreed between the parties which set out the services provided by Intelligent Assessments to the Client in order to onboard the Client and create the appropriate Assessment Templates. On-boarding Fee: the fees payable by the Client to Intelligent Assessments for the On-boarding Services (if any) as set out in the Subscription DetailsOutput: the results of the Services including any information, assessments, documents, reports or otherwise obtained through use of the Services.Renewal Period: the period described in clause 11.1.Responses: the completed assessments carried out by the Client.Responses Limit: the maximum number of completed assessments by the Client in a year as defined by the Client’s subscription.Services: the subscription services provided by Intelligent Assessments to the Client under this agreement via www.intelligentassessments.ai or any other website notified to the Client by Intelligent Assessments from time to time, which includes the assessment of Projects and provision of Outputs as more particularly described in the Documentation and the support services set out in the Support Services Policy.Services Start Date: the date identified as such in the Subscription DetailsSoftware: the online software applications provided by Intelligent Assessments as part of the Services.Subscription Details: the details of the Client’s subscription set out during the online subscription process.Subscription Fees: the subscription fees payable by the Client to Intelligent Assessments for the User Subscriptions, as set out in the Subscription Details.Subscription Term: has the meaning given in clause 11.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).Support Services Policy: Intelligent Assessment’s support services policy set out at www.intelligentasessments.ai/supportUK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 6.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.User Subscription Maximum: the maximum number of Authorised Users as set out in the Subscription DetailsVirus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.1.7 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.1.8 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.1.9 A reference to writing or written excludes fax but includes email.1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. SERVICES AND AUTHORISED USERS2.1 Intelligent Assessments shall:(a) Provide any On-boarding Services set out in the Subscription Details; and(b) during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.2.2 Subject to the User Subscription Maximum and the Responses Limit, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Intelligent Assessments hereby grants to the Client a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services, Assessment Templates and the Documentation during the Subscription Term solely for the Client's internal business operations.2.3 In relation to the Authorised Users, the Client undertakes that:(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the User Subscription Maximum it has purchased from time to time;(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;(c) each Authorised User shall keep a secure password for their use of the Services and Documentation, and that each Authorised User shall keep their password confidential;(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Intelligent Assessments within 5 Business Days of Intelligent Assessments' written request at any time or times;(e) it shall permit Intelligent Assessments or Intelligent Assessments' designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Client's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per year, at Intelligent Assessments' expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;(f) if any of the audits referred to in clause 2.3(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Intelligent Assessments' other rights, the Client shall promptly disable such passwords and Intelligent Assessments shall not issue any new passwords to any such individual; and(g) if any of the audits referred to in clause 2.3(e) reveal that the Client has underpaid Subscription Fees to Intelligent Assessments, then without prejudice to Intelligent Assessments' other rights, the Client shall pay to Intelligent Assessments an amount equal to such underpayment as calculated in accordance with Intelligent Assessments’ standard price list within 10 Business Days of the date of the relevant audit.2.4 The Client 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;(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;and Intelligent Assessments reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to the Service if this clause is breached.2.5 The Client 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 Software and/or Documentation (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 Software; or(b) access all or any part of the Services, Assessment Templates and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation; or(c) use the Services, Assessment Templates and/or Documentation to provide services to third parties; or(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Assessment Templates and/or Documentation available to any third party except the Authorised Users, or(e) attempt to obtain, or assist third parties in obtaining, access to the Services, Assessment Templates and/or Documentation, other than as provided under this clause 2; or(f) introduce or permit the introduction of, any Virus into Intelligent Assessments's network and information systems.2.6 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, Assessment Templates and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Intelligent Assessments.2.7 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client unless the parties agree otherwise in writing or unless the Subscription Details expressly state otherwise.2.8 Additional User Subscriptions may be purchased, and the User Subscription Maximum and/or Response Limit may be increased, upon request and with Intelligent Assessments’ prior written agreement which may be given subject to the payment of an additional fee which will be pro-rated from the date of activation by Intelligent Assessments for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).2.9 The provision of support services which are outside the scope of the Support Services Policy shall be subject to availability and shall be charged for at Intelligent Assessment’s applicable time and materials rates.
3. DATA PROTECTION3.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 3 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.3.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Intelligent Assessments is the Processor. This clause 3 sets out the scope, nature and purpose of processing by Intelligent Assessments, the duration of the processing and the types of Personal Data and categories of Data Subject.3.3 Without prejudice to the generality of clause 3.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Intelligent Assessments and/or lawful collection of the Personal Data by Intelligent Assessments on behalf of the Client for the duration and purposes of this agreement.3.4 Without prejudice to the generality of clause 3.1, Intelligent Assessments shall, in relation to any Personal Data processed in connection with the performance by Intelligent Assessments of its obligations under this agreement:(a) process that Personal Data only on the documented written instructions of the Client unless Intelligent Assessments is required by Domestic Law or EU Law to otherwise process that Personal Data. Where Intelligent Assessments is relying on Domestic Law or EU Law as the basis for processing Personal Data, Intelligent Assessments shall promptly notify the Client of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits Intelligent Assessments from so notifying the Client;(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and(d) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;(e) notify the Client without undue delay on becoming aware of a Personal Data Breach;(f) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Domestic Law or EU Law to store the Personal Data; and(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 3 and allow for audits by the Client or the Client's designated auditor and immediately inform the Client if, in the opinion of Intelligent Assessments, an instruction infringes the Data Protection Legislation.3.5 The Client provides a general authorisation for Intelligent Assessments to engage sub-processors to process Personal Data on the Client’s behalf, including the sub-processors listed at www.intelligentassessments.ai/sub-processors. Updated list of sub-processors will always be available in the Documentation Intelligent Assessments shall impose substantially the same data protection terms on any sub-processor it appoints as contained in this clause 3 and as between the Client and Intelligent Assessments, Intelligent Assessments shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 3.3.6 Intelligent Assessments may, at any time on not less than 30 (thirty) days’ notice, revise this clause 3 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).3.7 Processing by Intelligent Assessments:(a) Scope, Nature & Purpose of Processing – for the purpose of providing the Services to the Data Subjects as Authorised Users and representatives of the Client.(b) Duration of Processing – Subscription Term plus 60 days(c) Types of Personal Data – Name, email address, IP address, phone number, job title, organisation, payment details.(d) Categories of Data Subject – Employees, agents and contractors of the Client
4. INTELLIGENT ASSESSMENTS' OBLIGATIONS4.1 Intelligent Assessments undertakes that the On-boarding Services and the Services will be performed with reasonable skill and care. 4.2 The Services are based on a methodology developed by Intelligent Assessments which makes certain assumptions and has certain limitations all of which are described in the Documentation. The Client acknowledges and agrees that it has read the Documentation and understands that the Outputs from the Services are indicative only and it will not rely on them. 4.3 The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Intelligent Assessments' instructions, or modification or alteration of the Services by any party other than Intelligent Assessments or Intelligent Assessments' duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking:(a) In the period of 3 months following the Effective Date, the Client may terminate this agreement immediately on written notice to Intelligent Assessments in which case:(i) where the Client has paid the full amount of the Subscription Fee, Intelligent Assessments shall retain such proportion of the Subscription Fee as relates to the first 3 months of the Subscription Term and such proportion of the Subscription Fee that the Client has paid to Intelligent Assessments as relates to the remaining 9 months of the Subscription Term shall be refunded to the Client within 30 days of termination (however for the avoidance of doubt, the On-boarding Fee shall not be refundable). (ii) where a Client is paying the Subscription Fee in monthly instalments, such proportion of the Subscription Fee as relates to the first 3 months of the Subscription Term shall be immediately due and payable, to the extent that it has not already been paid, and the Client shall have no further obligation to pay the remaining instalments of the Subscription Fee. For the avoidance of doubt, the On-boarding Fee shall not be refundable.Such right of termination constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 4.1 during the period of 3 months following the Effective Date;(b) Intelligent Assessments will, at its expense, use its reasonable commercial endeavours during Normal Business Hours to correct any such non-conformance promptly. Such attempt to correct such non-conformance constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1.4.4 Intelligent Assessments:(a) does not warrant that:(i) the Client's use of the Services will be uninterrupted or error-free; or(ii) that the Services, Documentation and/or Outputs obtained by the Client through the Services will meet the Client's requirements; or(iii) the Software or the Services will be free from Viruses; (iv) any information, results, reports or Outputs from the use of the Service is accurate.(b) shall not be responsible for the Outputs generated and any action the Client takes based on such Outputs or Assessment Templates.(c) is not responsible for the Client Data inputted into the Service by the Client or the Outputs generated by the Client Data.(d) 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 Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.4.5 This agreement shall not prevent Intelligent Assessments from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.4.6 Intelligent Assessments warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.4.7 Intelligent Assessments shall follow its archiving procedures for Client Data as set out in its Back-Up Policy set out in the Documentation as such Documentation may be amended by Intelligent Assessments in its sole discretion from time to time. In the event of any loss or damage to Client Data due to Intelligent Assessment’s failure to comply with the terms of this agreement, the Client's sole and exclusive remedy against Intelligent Assessments shall be for Intelligent Assessments to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Intelligent Assessments in accordance with the archiving procedure described in its Back-Up Policy. Intelligent Assessments shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by the Client or any third party (except those third parties sub-contracted by Intelligent Assessments to perform services related to Client Data maintenance and back-up for which it shall remain fully liable) and Intelligent Assessments shall be entitled to charge the Client for restoring Client Data in these circumstances.
5. CLIENT'S OBLIGATIONS5.1 The Client shall:(a) provide Intelligent Assessments with all necessary co-operation in relation to this agreement;(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 Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, Intelligent Assessments may adjust any agreed timetable or delivery schedule as reasonably necessary;(d) ensure that the Authorised Users use the Services and the Documentation 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 Intelligent Assessments, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;(f) ensure that its network and systems comply with the relevant specifications provided by Intelligent Assessments 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 Intelligent Assessments' data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.5.2 The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
6. CHARGES AND PAYMENT6.1 Where the Subscription Details state that the Services are provided on a trial subscription basis, no Subscription Fees shall be payable and the entirety of this clause 6 shall not apply.6.2 The Client shall pay the On-boarding Fee and the Subscription Fees to Intelligent Assessments for the User Subscriptions in accordance with this clause 6 and the Subscription Details. The Subscription Fee is an annual fee which becomes due on the first date of the Initial Subscription Period or Renewal Period and is payable annually or in monthly instalments as set out in the Subscription Details. In the event that this agreement is terminated prior to the end of the relevant Initial Subscription Period or Renewal Period, the remaining balance of the Subscription Fee will become immediately due and payable.6.3 Unless the Subscription Details state that the Services are being provided on a trial basis, the Client shall on the Effective Date provide to Intelligent Assessments valid, up-to-date and complete credit card details or approved purchase order information acceptable to Intelligent Assessments and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:(a) its credit card details to Intelligent Assessments, the Client hereby authorises Intelligent Assessments to bill such credit card:(i) on the Service Start Date for the On-boarding Fee and Subscription Fees payable in respect of the Initial Subscription Term; and(ii) subject to clause 11.1, on each anniversary of the Service Start Date for the Subscription Fees payable in respect of the next Renewal Period;(b) its approved purchase order information to Intelligent Assessments, Intelligent Assessments shall invoice the Client:(i) on the Service Start Date for the On-boarding Fee and Subscription Fees payable in respect of the Initial Subscription Term; and(ii) subject to clause 11.1, at least 30 days prior to each anniversary of the Service Start Date for the Subscription Fees payable in respect of the next Renewal Period,and the Client shall pay each invoice within 30 days after the date of such invoice.6.4 If Intelligent Assessments has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Intelligent Assessments:(a) Intelligent Assessments may, without liability to the Client, disable the Client's password, account and access to all or part of the Services and Intelligent Assessments shall be under no obligation to provide any or all of the 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 3% over the then current base lending rate of Bank of England base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.6.5 All amounts and fees stated or referred to in this agreement:(a) are, subject to clause 10.3(b), non-cancellable and non-refundable;(b) are exclusive of value added tax, which shall be added to Intelligent Assessments's invoice(s) at the appropriate rate.6.6 Intelligent Assessments shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior notice to the Client and the Subscription Details shall be deemed to have been amended accordingly.
7. PROPRIETARY RIGHTS7.1 The Client acknowledges and agrees that Intelligent Assessments and/or its licensors own all intellectual property rights in the Services, the Software, the Assessment Templates and the Documentation. Except as expressly stated herein, this agreement does not grant the Client 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 Services or the Documentation.7.2 Intelligent Assessments confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.7.3 Intelligent Assessments shall have the right to collect and analyse anonymized and aggregated data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including anonymised aggregate information derived from Client Data), and Intelligent Assessments will be free (during and after the Subscription Term) to use such aggregated information and data in its business.
8. CONFIDENTIALITY8.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this agreement, including but not limited to:(a) any information that would be regarded as confidential by a reasonable business person relating to:(i) the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;(b) any information developed by the parties in the course of carrying out this agreement and the parties agree that:(i) the Assessment Templates, details of the Services, and the results of any performance tests of the Services, shall constitute Intelligent Assessments Confidential Information; and(ii) Client Data shall constitute Client Confidential Information;Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.8.2 The provisions of this clause shall not apply to any Confidential Information that:(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or(d) the parties agree in writing is not confidential or may be disclosed; or(e) is aggregated and anonymised as described in clause 7.38.3 Each party shall keep the other party's Confidential Information secret and confidential and shall not:(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 8.8.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.8.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 8.5 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.8.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this clause are granted to the other party, or to be implied from this agreement.8.7 On termination or expiry of this agreement, each party shall:(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information (but not including any data referred to in clause 7.3);(b) save for the Client Data which shall be dealt with in accordance with clause 11.4(d), erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).8.8 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.8.9 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.8.10 The above provisions of this clause 8 shall survive for a period of five years from termination or expiry of this agreement.
9. INDEMNITY9.1 Intelligent Assessments shall defend the Client, its officers, directors and employees against any claim that the Client's use of the Services or Documentation 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 Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:(a) Intelligent Assessments is given prompt notice of any such claim;(b) the Client does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Intelligent Assessments in the defence and settlement of such claim, at Intelligent Assessments' expense; and(c) Intelligent Assessments is given sole authority to defend or settle the claim.9.2 In the defence or settlement of any claim, Intelligent Assessments may procure the right for the Client to continue using the Services, replace or modify the 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 Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.9.3 In no event shall Intelligent Assessments, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:(a) a modification of the Services or Documentation by anyone other than Intelligent Assessments; or(b) the Client's use of the Services or Documentation in a manner contrary to the instructions given to the Client by Intelligent Assessments; or(c) the Client's use of the Services or Documentation after notice of the alleged or actual infringement from Intelligent Assessments or any appropriate authority; or(d) data supplied to Intelligent Assessments or the Client via a third party.9.4 The foregoing states the Client's sole and exclusive rights and remedies, and Intelligent Assessments' (including Intelligent Assessments' employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10. LIMITATION OF LIABILITY10.1 Except as expressly and specifically provided in this agreement:(a) the Client assumes sole responsibility for Outcomes obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Intelligent Assessments shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Intelligent Assessments by the Client in connection with the Services, or any actions taken by Intelligent Assessments at the Client's direction;(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and(c) the Services and the Documentation are provided to the Client on an "as is" basis.10.2 Nothing in this agreement excludes the liability of Intelligent Assessments:(a) for death or personal injury caused by Intelligent Assessments' negligence; or(b) for fraud or fraudulent misrepresentation.10.3 Subject to clause 10.1 and clause 10.2:(a) Intelligent Assessments 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) Intelligent Assessments' total aggregate liability in contract (including in respect of the indemnity at clause 9.1), 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 lower of the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
11. TERM AND TERMINATION11.1 Where the Subscription Details states that the Initial Subscription Term is a trial subscription, this agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term after which it shall expire without notice. Where the Subscription Details do not state that the Initial Subscription Term is a trial subscription, this agreement shall, unless otherwise terminated as provided in this clause 11, commence on the Service Start Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of the same length as the Initial Subscription Term (each a Renewal Period), unless:(a) either party notifies the other party of termination, in writing, at least 14 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.11.2 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 14 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 and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or(e) the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.11.3 Without affecting any other right or remedy available to it, Intelligent Assessments may:(a) terminate the agreement or any part of it; or(b) suspend the Services or any part of them,with immediate effect by giving written notice to the Client if any of its third party licences on which it relies to provide the Services terminates or changes such that Intelligent Assessments is unable to provide the Services on the terms of this agreement.11.4 On termination or expiry of this agreement for any reason:(a) all licences granted under this agreement, shall immediately terminate and the Client shall immediately cease all use of the Services and/or the Documentation;(b) the remaining balance of the Subscription Fee for the Initial Subscription Period or Renewal Period (as applicable) will become immediately due and payable.(c) 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;(d) Intelligent Assessments may destroy or otherwise dispose of any of the Client Data in its possession no later than three months after the effective date of the termination or expiry of this agreement unless a new agreement for the provision of Services is entered into before the end of the three month period; or disposing of Client Data; 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.
12. GENERAL12.1 Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.12.2 Assignment and other dealings.(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the Supplier's prior written consent.(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this agreement.12.3 Entire agreement.(a) The 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.(b) 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.12.4 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).12.5 Waiver. (a) A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.(b) A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.12.6 Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.6 shall not affect the validity and enforceability of the rest of this agreement.12.7 Notices.(a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to contracts@intelligentassessments.ai in the case of Intelligent Assessments and the address specified in the Subscription Details in the case of the Client.(b) Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.7(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.(c) This clause 12.7 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.12.8 Third party rights. This agreement does not give rise to any rights under this agreements (Rights of Third Parties) Act 1999 to enforce any term of this agreement.12.9 Governing law. The agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
