1.1 These Platform Terms, together with the Order Form, including any orders or renewals made via email as agreed in writing by the parties, and any documents referred to in or incorporated into them by reference, form a legally binding agreement which contains the entire agreement between the Customer and Sensat (together, this "Contract"). By using all or any part of the Subscription Services, the Customer accepts all the terms and conditions of the Contract. The Customer agrees that this Contract is enforceable like any written negotiated agreement signed by the Customer and that, if the Customer does not agree, then neither it, nor any of its Users, shall use any part of the Subscription Services.
1.2 Definitions for terms used in this Contract, and rules governing the way in which it shall be interpreted, are detailed in clause 23.
1.3 If the Customer is domiciled for tax purposes in any location other than the UK, the relevant Jurisdiction Specific Terms are incorporated into and modify this Contract.
2. Duration of this Contract
2.1 This Contract shall commence on the Effective Date and will continue until the end of the Initial Term, unless terminated earlier in accordance with its terms.
2.2 Prior to the expiry of the Term, the parties shall discuss whether the Customer wishes to extend the Term of this Contract. If Sensat and Customer agree in writing, the Term will extend for a further Extension Period.
3. Subscription Services
3.1 Subject to the Customer paying the Charges in accordance with this Contract, Sensat shall provide the Subscription Services, exercising reasonable care and skill in accordance with this Contract and as further described in any applicable Service Schedule.
3.2 Sensat shall provide these Subscription Services to the Customer for the sole benefit of the Customer and, where agreed with Sensat, the Customer's Affiliates.
3.3 The Subscription Services provided by Sensat to the Customer will depend on which Plan and Add-ons (if any) have been agreed between the parties in the Order Form. If at any time the Customer's use of Platform exceeds the Plan agreed between the parties in the Order Form, Sensat may notify the Customer of the excess usage, in which case: (a) Sensat and the Customer will agree a date from which the Customer will be moved to the upgraded Plan and (b) unless otherwise agreed between the parties, Sensat will charge to the Customer the difference in Charges between the two Plans on a pro-rata basis for the remaining period of the Initial Term or the then-current Extension Period (as applicable). If the Customer elects not to upgrade its Plan, it shall ensure its subsequent usage remains within the limitations of its existing Plan. The Customer may request to downgrade its Plan on not less than five (5) Business Days' written notice to Sensat, provided that such change will be effective from the start of the next Extension Period.
3.4 The Customer may invite Users that are internal and external to the Customer to access and use the Platform by invitation via a unique link. The Customer agrees that the Subscription Services provided by Sensat to the Customer's external Users may differ from those provided to the Customer and its internal Users as set out in any Service Schedule (or agreed otherwise between the parties, in the Order Form or otherwise).
3.5 Sensat shall use reasonable endeavours to meet applicable Service Levels (as may be more particularly described in a Service Level Agreement).
4. Charges and payment
4.1 The Customer shall pay the Charges to Sensat in accordance with this clause 4.
4.2 Sensat shall be entitled to invoice the Customer in advance at the start of each Charging Period specified in the Order Forms. Unless otherwise agreed between the parties, invoiced sums fall due upon receipt of invoice.
4.3 The Customer shall pay Sensat all sums due promptly by bank transfer (using the payment details as are notified by Sensat to the Customer from time to time) following receipt of invoice, and in any event within the Payment Term specified in the Order Form. Subject to clause 4.6, if the Customer fails to pay within the Payment Term, the Customer shall pay interest on the outstanding amount. Interest shall accrue at a daily rate from the due date until the date of actual payment in full (whether before or after judgment) at the rate of 4% per annum, compounded monthly. The Customer shall pay any interest so charged immediately on demand.
4.4 All Charges shall be expressed exclusive of Tax. The Customer shall pay all applicable Tax in addition to the Charges. Sensat shall deliver correct invoices in respect of such Charges and Taxes.
4.5 If the Customer requires a purchase order number or other identifier to be included on any invoice (as specified in the Order Form), it shall promptly provide the relevant information to Sensat. The Customer shall be required to pay invoices raised by Sensat in accordance with this clause 4 whether or not Sensat has been provided with such information.
4.6 If the Customer disputes the whole or part of an invoice, the Customer shall notify Sensat in writing by email to firstname.lastname@example.org (or by such other means as Sensat may advise from time to time), within seven (7) days of receipt of invoice. The notice must state that the invoice is disputed and be accompanied by details of the invoice that is being disputed and the reasons for the dispute. If the disputed amount is less than five per cent (5%) of an invoice, the Customer shall pay the invoice in full. If the disputed amount is five per cent (5%) or more of an invoice, the Customer shall pay the undisputed amount. Sensat and the Customer shall each use reasonable endeavours to resolve the dispute as soon as reasonably practicable.
4.7 The Customer shall pay all sums under this Contract in full without any set-off, counterclaim or deduction. If the Customer is required by law to deduct or withhold an amount from any sum payable to Sensat under the Contract (whether as a result of tax or otherwise), the Customer shall pay a sum that ensures that Sensat receives and retains a net sum equal to the amount it would have received if no such deduction or withholding had been made or been required to be made.
4.8 Sensat shall be entitled to adjust the Charges at the start of each Extension Period on prior notice to the Customer, provided that any such adjustment shall be notified prior to the Customer agreeing to extend the Term under clause 2.2.
5. Customer obligations
5.1 The Customer shall perform its obligations, and comply with any other reasonable requests notified to it in connection with its use of the Subscription Services, in a timely manner. In particular, the Customer shall, and shall ensure that the Users (and its Affiliates) shall:
(a) comply with the Acceptable Use Terms;
(b) use the Subscription Services in a professional and responsible way and in accordance with the relevant Service Schedule, and shall comply with all Applicable Laws relating to its use or receipt of the Subscription Services;
(c) use the Subscription Services only for the Customer's own internal business purposes or operations (where applicable in the manner authorised by Sensat);
(i) introduce any Viruses into the Platform or Sensat's other systems or include any Viruses in the Customer Materials;
(ii) upload or provide any materials which are obscene, offensive, harmful, or otherwise objectionable;
(iii) alter, disable, interfere with, or circumvent any aspect of the Subscription Services or the equipment used to provide the Subscription Services, including any of the security features of the Subscription Services, or do anything designed to affect their integrity or access to them;
(iv) test or reverse-engineer the Subscription Services in order to find limitations or vulnerabilities, or for any other reason;
(v) reproduce, modify, decompile, reverse engineer, or prepare derivative works of the Subscription Services, or otherwise infringe any intellectual property rights in the Subscription Services;
(vi) perform any indexing, scraping, or data mining of the Subscription Services;
(vii) infringe any person's privacy rights, intellectual property rights, or other rights in the course of its use of the Subscription Services;
(viii) access all or any part of the Subscription Services in order to build a product or service which competes in any way with the Subscription Services;
(ix) make the Subscription Services available to any third party except to authorised Users; or
(x) attempt to obtain, or assist third parties in obtaining access to the Subscription Services, other than as provided for in this Contract.
5.2 In relation to its use of the Subscription Services, the Customer shall authorise and de-authorise Users in the manner agreed with Sensat, using its reasonable endeavours to ensure that all Users are under the Customer’s control or direction. The Customer shall ensure its Users comply with the User Terms of Access. Sensat is entitled to rely on the permissions granted to Users in connection with the Customer's use of the Subscription Services. The Customer agrees that it is solely the Customer’s choice to invite Users and to share Customer Materials with them and consents to the Subscription Services sending emails on its behalf and that the Customer and/or its Users are solely responsible for their sharing of any materials (whether Customer Materials or otherwise) through the Subscription Services (including where the Subscription Services send emails on the Customer’s behalf).
5.3 The Customer may also use the Subscription Services for its Affiliates' internal business purposes, provided that the Customer: (i) ensures that its Affiliates comply with the terms of this Contract (and in particular this clause 5); and (ii) remains responsible for the acts and omissions of its Affiliates in connection with the Subscription Services.
5.4 The Customer acknowledges that, by virtue of using the Subscription Services, it is not located in a jurisdiction where use of the Subscription Services and/or the uploading or sharing of any materials via the Subscription Services is illegal or restricted by applicable law. Sensat reserves the right at all times to not provide access to the Subscription Services if the Customer is located in such a jurisdiction and the Customer should, in such a case, immediately discontinue its use of the Subscription Services.
6. Intellectual property rights
6.1 As between the Customer and Sensat, the Customer shall at all times retain title to the Customer Materials. Except as stated in this Contract, Sensat shall not acquire any right or interest in or to the Intellectual Property Rights subsisting in the Customer Materials.
6.2 Except as stated in this Contract, the Customer shall not acquire any right, title, or interest in or to the Intellectual Property Rights of Sensat, its Affiliates, or its licensors. This includes any Intellectual Property Rights subsisting in the Platform, any Subscription Services or in any materials used or supplied by Sensat, whether pre-existing or created or coming into existence during the performance of the Contract (including any Sensat Materials), but excludes any Intellectual Property Rights subsisting in the Customer Materials. Any new Intellectual Property Rights created in the course of or in connection with the Contract shall vest absolutely in Sensat, excluding those subsisting in Customer Materials.
6.3 Subject to the Customer paying the Charges, and to such restrictions as may be set out in any Service Schedule depending upon the Customer's Plan, Sensat grants the Customer a revocable, non-exclusive, non-transferable, non-sub-licensable licence during the Service Period to permit the Customer and Users to:
(a) access and use the Platform; and
(b) use any Intellectual Property Rights subsisting in the Subscription Services (excluding any Third Party Software),solely for the purposes of, and in accordance with, this Contract.
6.4 The parties acknowledge that Sensat may use Third Party Software to deliver the Subscription Services without any requirement for the Customer to have a licence to use it. If Sensat supplies any Third Party Software, the Customer shall only have the right to use such Third Party Software in accordance with the licence terms on which the Third Party Software is supplied.
6.5 The Customer grants Sensat and its Affiliates a non-exclusive, transferable, worldwide licence (including the right to sub-license to its Affiliates and contractors) to reproduce, adapt, distribute, store, copy, process and otherwise use the Customer Materials for the purposes of this Contract, including:
(a) providing the Subscription Services;
(b) enhancing or improving the performance and functionality of the Subscription Services, the Platform, and Sensat's technology;
(c) handling and transmitting the Customer Materials (to the extent necessary), and/or using third party service providers or applications to format, process and/or display Customer Materials through the Platform; and
(d) sales, marketing and/or Platform demonstration purposes, subject to the Customer's prior written consent (as per the Order Form or otherwise).
6.6 Sensat shall ensure that any Customer Materials stored and processed by the Platform or as part of the Subscription Services are stored separately from, and are not co-mingled with, the materials of Sensat’s other users or customers.
6.7 By creating, submitting, uploading or otherwise making the Customer Materials available to Sensat, the Customer acknowledges and agrees that:
(a) it will bear all risks associated with the Customer Materials being used on the Platform and/or with the Subscription Services and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials; and
(b) Sensat will not be liable in any way for Customer Materials as uploaded or submitted by the Customer or a Customer's User, including any errors or omissions.
6.8 The term of any licence granted pursuant to this clause 6 shall end at the end of the Service Period, save as provided in clause 11.4.
6.9 If either party receives a claim of infringement of Intellectual Property Rights from a third party concerning (in the case of the Customer) the Subscription Services (excluding any Third Party Software) or (in the case of Sensat) the Customer Materials (an "Infringement Claim"), it shall notify the other party promptly in writing.
6.10 On receipt of notice of an Infringement Claim, that party (the "Indemnifying Party") will make reasonable efforts either to obtain for the other party (the "Indemnified Party") (at no cost) a right to use the infringing item in accordance with the Contract or to make such modifications to the infringing item as may be necessary to remove the alleged infringement. If the Indemnifying Party is unable to obtain or if it is impractical to obtain such a right or make such a modification (at no cost), it may terminate the Contract (in whole or in part in relation to the infringing item) immediately on written notice to the Indemnified Party.
6.11 Without limiting clause 6.10, the Indemnifying Party may in its own name and at its own cost undertake the conduct of any proceedings relating to an Infringement Claim, subject to any requirement for leave to be granted by the court or tribunal in which the Infringement Claim may be conducted and will indemnify the Indemnified Party from and against all damages awarded under any final judgment of a court of competent jurisdiction or agreed by the Indemnifying Party in final settlement of the Infringement Claim, provided that the Indemnified Party: (i) makes no statement prejudicial to the Indemnifying Party or in respect of such Infringement Claim; (ii) provides all reasonable assistance in connection with the Infringement Claim, at the Indemnifying Party's cost; and (iii) allows the Indemnifying Party to have sole conduct and control of the defence of the Infringement Claim and/or any settlement or compromise of the Infringement Claim, if the Indemnifying Party exercises its option to undertake the conduct of the proceedings. The indemnity in this clause 6.11 shall be the Indemnified Party's sole and exclusive remedy with respect to any Infringement Claim.
6.12 In no event shall Sensat be liable to the Customer under the indemnity in clause 6.11 to the extent that the Infringement Claim is based on:
(a) a modification of the Subscription Services or Platform by anyone other than Sensat;
(b) the Customer's use of the Subscription Services or Platform in a manner contrary to this Contract or the lawful instructions given to the Customer by Sensat.
7.1 Nothing shall have the effect of limiting or excluding either party’s liability for fraud or fraudulent misrepresentation, death or personal injury caused by negligence, or any other matter for which it would be unlawful for a party to limit or exclude its liability.
7.2 Subject to clause 7.1, Sensat's total aggregate liability for all losses, damages, costs and expenses suffered or incurred by the Customer in connection with the Subscription Services (whether arising in contract, tort including negligence, statute or otherwise) shall not exceed a sum equal to the Charges paid or payable to Sensat in the Contract Year in which the first cause of action arose. This limitation of Sensat’s liability will survive termination or expiry of the Contract.
7.3 Subject to clause 7.1, in no circumstances whatsoever shall Sensat be liable to the Customer (whether arising under contract, tort including negligence, statute or otherwise, and whether such loss is direct or indirect) for:
(a) any loss to the extent caused by an act or omission of a third party;
(b) any errors or omissions in any Customer Materials;
(c) any actions taken by Sensat at the Customer's direction; nor
(d) any loss of sales, turnover, revenue, profits or opportunity; loss of or interruption to business; loss of or damage to reputation or goodwill; loss of anticipated savings; or wasted management or administrative time.
7.3 Subject to clause 7.1, in no circumstances whatsoever shall either party be liable (whether arising under contract, tort including negligence, statute or otherwise) for any indirect or consequential loss or damage, or any special or exemplary loss or damage.
8. Conduct of claims, and rights of third parties
8.1 This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns).
8.2 Only the Customer shall be entitled to bring claims against Sensat under or in connection with this Contract or the Subscription Services. Sensat shall have no liability to Users, and the Customer shall ensure that none of its Users brings any claim against Sensat in connection with this Contract or the User Terms of Access. Any losses suffered by an Affiliate of the Customer shall be deemed to be suffered by the Customer. The Customer indemnifies, and shall upon request defend, Sensat from and against any and all loss, damage, or expense suffered or incurred by Sensat in connection with a claim brought by any of Customer's personnel, Users, or Affiliates in connection with the Subscription Services.
9. Force Majeure and relief from performance
9.1 Neither party shall be in breach of this Contract or otherwise liable to the other party for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event.
9.2 If a Force Majeure Event occurs, the party affected shall take reasonable steps to mitigate the impact of the Force Majeure Event.
9.3 If a Force Majeure Event continues for a period of more than thirty (30) days and continues to affect a party's ability to perform its obligations, the other party shall be entitled to terminate the Contract by giving not less than ten (10) Business Days written notice to the affected party.
9.4 This clause 9 shall not relieve the Customer from its obligation to pay any sums due under this Contract and its obligation to pay shall remain in full force and effect while a Force Majeure Event persists.
9.5 Sensat shall not be in breach of this Contract or otherwise liable to the Customer for any failure to perform, or delay in performing, its obligations under the Contract to the extent that such failure or delay is due to any failure to perform by the Customer, or any delay in the Customer performing its obligations. On the occurrence of such failure, Sensat shall be entitled to a reasonable extension of time in order to perform its obligations and (acting reasonably) to vary the Charges, recover any additional expenses that it may incur in performing its obligations, and charge the Customer such other sums to which it is entitled under the Contract (if any).
10. Confidentiality and data privacy
10.1 Except to the extent set out in this clause 10 or where disclosure is expressly permitted elsewhere in the Contract, each party shall:
(a) treat the other party's Confidential Information as confidential and safeguard it accordingly; and
(b) not disclose the other party's Confidential Information to any other person without the other party’s or the owner's prior written consent.
10.2 Clause 10 shall not apply to the extent that:
(a) such disclosure is a requirement of Applicable Law placed upon the party making the disclosure;
(b) such information was in the possession of the party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner, or is obtained from a third party without obligation of confidentiality;
(c) such information was already in the public domain at the time of disclosure otherwise than by a breach of the Contract;
(d) such information is independently developed without access to the other party’s Confidential Information;
(e) disclosure is made to a party’s legal counsel, independent auditors, or other professional advisers who are subject to professional duties of confidence; or
(f) the Confidential Information is personal data for which a party who would otherwise be subject to an obligation of confidence under this clause is a Controller.
10.3 Sensat may disclose the Customer’s Confidential Information to:
(a) any of its Affiliates for the purposes of management and reporting or who have a need to know the Confidential Information in order to assist Sensat in the performance of the Contract;
(b) any employees, consultants, directors, officers, contractors, subcontractors, and service providers who have a need to know the Confidential Information for the performance of the Contract, and any bank or third party providing finance to Sensat; and
(c) any other person to whom Sensat may disclose Confidential Information or certain categories of Confidential Information as stated in the Data Processing Schedule.
10.4 Sensat will use reasonable efforts to ensure that such third parties are subject to contractual or non-contractual obligations of confidence, except where it is impracticable to do so.
10.5 Sensat acknowledges that the Customer Materials are the Confidential Information of the Customer.
10.6 The Customer acknowledges that the Sensat Materials, details of the Platform and the Subscription Services, and the results of any performance tests of the Platform or Subscription Services, constitute Sensat's Confidential Information.
10.7 Neither party will make any press release naming the other except with prior written consent, not to be unreasonably withheld or delayed.
10.8 Each party shall comply with the Data Processing Schedule, which is incorporated into this Contract by reference.
11. Information security and compliance
11.1 The Customer will be responsible for:
(a) preventing unauthorised use of the Subscription Services using any credentials or other information provided to it;
(b) maintaining the security of all systems and equipment within its (or its employees’, agents’ or contractors’) control;
(c) maintaining (and ensuring that each of its Users maintains) the integrity and secrecy of all passwords, log-in details, and access codes used for the purposes of accessing or using the Subscription Services; and
(d) terminating access for anyone who is no longer a User or who breaches these Platform Terms.
11.2 The Customer shall notify Sensat immediately of any illegal, fraudulent, or unauthorised use of the Subscription Services of which it becomes aware. Sensat will be entitled (but not obliged) to suspend the provision of the Subscription Services upon receipt of the Customer’s notice. Sensat will lift its suspension or recommence its provision of the Subscription Services within a reasonable timescale after the Customer demonstrates to Sensat’s reasonable satisfaction that appropriate technical, organisational, security, or other measures have been put in place to prevent any further unauthorised use of the Subscription Services. The Customer will remain liable for the payment of the Charges arising out of any such use.
11.3 The Customer understands and accepts the performance by Sensat of certain Subscription Services may carry a risk to the Customer of loss or corruption of data. Unless otherwise agreed between the parties, Sensat shall have no obligations in respect of data backup or retention. Sensat shall not be liable to the Customer (whether under contract, tort including negligence, statute or otherwise) for any loss of or damage to data, systems, or programs.
11.4 The Customer acknowledges that Sensat may (but is not obliged to) hold Customer Materials following termination of the Contract in line with its policies, including to comply with its legal obligations. Clause 10 (Confidentiality) shall continue to apply to such Customer Materials whilst they are so retained.
11.5 Sensat shall have the right to examine, from time to time, the use to which the Customer and/or any User puts the Subscription Services where such examination is reasonably necessary: (i) to protect/safeguard the integrity, operation and functionality of Sensat’s systems or the systems of any third parties used to provide the Subscription Services; (ii) to monitor the performance of the Subscription Services including the Customer’s and/or any User’s usage; and (iii) to comply with Sensat's contractual obligations to its third party suppliers and licensors. The Customer hereby consents to such examination and shall provide Sensat with reasonable information regarding such matters without undue delay upon request.
12. Sensat Materials
12.1 The Customer and Sensat acknowledge that Sensat Materials may incorporate or be derived, at least in part, from Customer Materials. In accordance with clause 6, while the Customer shall have exclusive title and ownership over the Customer Materials, Sensat and its licensors shall retain exclusive title and ownership to the Sensat Materials and shall be entitled to use them for their own business purposes.
12.2 Sensat Materials shall not be Confidential Information of the Customer, nor subject to the Data Processing Schedule (and Sensat Materials shall not contain Personal Data).
13. Changes to Subscription Services or the Contract
13.1 Sensat may at its discretion:
(a) change the technical specification or functionality of a Subscription Service;
(b) provide an alternative service or software or make changes to a Subscription Service; and
(c) change a Service or these Platform Terms or the other provisions of the Contract as it may consider appropriate, for example to reflect changes made to the services supplied by third party agents, sub-contractors, or licensors used by Sensat to provide the relevant Service or the terms on which they do business with Sensat,
(each a "Change").
13.2 If Sensat believes a Change to the Service could have an adverse impact on the Customer, or if the Change is a change to the Contract, then Sensat shall make information about the proposed Change available to the Customer at least five (5) days before implementing the Change.
13.3 A Change shall be binding on the Customer unless the Customer objects to it. The Customer shall have the right to object to a Change only if it would materially decrease or impair the performance of the Service or if it would be a material variation to the terms of the Contract detrimental to the Customer (a "Material Change"). If the Customer has not given written notice of its rejection of a Material Change within five (5) days of being notified of it, then the Customer will be deemed to have accepted it. If the Customer objects to a Material Change within the required time period, then the following provisions shall apply:
(a) Sensat shall have the right to suspend the affected Service(s) without liability to the Customer until agreement can be reached or the Contract terminated (as follows); and
(b) the parties will negotiate in good faith to agree a variation acceptable to both parties. If the parties cannot agree on the proposed variation within ten (10) days of the Customer receiving the initial details of the variation from Sensat, then either party may terminate the Contract and Sensat shall have no liability to the Customer for such termination. The Customer shall remain liable to pay to Sensat all Charges and expenses incurred up to the date of termination, and Sensat shall refund to the Customer any Charges it has already paid that relate to the period following the date of termination.
13.4 If the Customer is given administrative control in respect of a Service, such as the ability to activate/deactivate or customise different features of the Service, the Customer is responsible for ensuring the Service remains suitable with regard to those features, and modifies them at its own risk. Sensat shall not be liable whether in contract, tort (including negligence), breach of statutory duty or otherwise howsoever arising for any errors, faults in the Subscription Services as a result of any such changes, and may charge for any time which it spends in relation to any such errors or faults (including time spent investigating and correcting the same) at its standard rates for professional services from time to time.
14. Suspension of a Service
14.1 Sensat may suspend access to the Subscription Services, either in whole or in part:
(a) if any circumstances occur which would give Sensat a right to terminate the Contract (provided that Sensat is not obliged to suspend before exercising its right to terminate);
(b) in an emergency, and/or to safeguard the integrity and security of its network or systems, and/or to maintain, repair, or enhance the performance of its network or systems;
(c) for any breach or suspected breach of clause 5;
(d) where the Customer fails to pay any undisputed sums within the Payment Terms; or
(e) where it is expressed to have the right to do so elsewhere in this Contract.
14.2 Sensat will give the Customer at least two (2) days' prior notice of any suspension where it is reasonably practicable and appropriate for Sensat to do so in the circumstances.
14.3 Sensat will cease any suspension made under clause 14.1 within a reasonable time after the circumstances giving rise to the suspension are resolved. Sensat shall not be liable to the Customer for any loss or damage resulting from any suspension made in accordance with this clause 14.
15. Ending this Contract
15.1 Provided that: (i) the Customer has paid all sums due under this Contract; and (ii) the Initial Term exceeds three (3) months, the Customer may terminate this Contract for convenience by giving at least thirty (30) days' prior written notice to Sensat, such notice taking effect no later than three (3) months following the Effective Date.
15.2 Either party may terminate this Contract immediately or on such other notice as it considers appropriate if the other party is in material breach of the Contract and the breach either cannot be remedied or is not remedied by the other party within thirty (30) days of receiving notice of the breach from the party not in breach.
15.3 Sensat may terminate this Contract:
(a) if the Customer has failed to pay any undisputed sum due under the Contract within the Payment Term, and remains in default not less than ten (10) Business Days after being notified in writing to make such payment;
(b) in any other circumstances in which Sensat has suspended a Service in accordance with the Contract and has not been able to reinstate it within ten (10) Business Days following the initial suspension having exercised reasonable efforts to do so where appropriate; or
(c) where it is expressed to have the right to do so elsewhere in this Contract.
15.4 Termination or expiry of this Contract shall not affect any accrued rights or liabilities of either party nor shall it affect any other provision of the Contract which is expressly or by implication intended to come into or continue in force on or after termination or expiry of the Contract, including clauses 4, 6.9, 6.10, 7, 8, 9.5, 10, 11.2, 11.3, 11.4, 13.4, 14.3, 15.5, 16.2, 17, 18, 19, 21 and 23.
15.5 Following notice of termination of the Contract by either party (except where Sensat has terminated the Contract in any of the circumstances set out in clause 15.2 or 15.3), Sensat shall, subject to the payment of any applicable Charges, continue to provide the Subscription Services until the date of termination.
15.6 Upon termination of the Contract, Sensat will have the right to immediately deactivate any account(s) of the Customer (and any of the Customer's Users) and suspend access to Sensat Materials and/or Customer Materials.
15.7 Provided the Customer has paid all Charges due in connection with the Subscription Services, Sensat will grant the Customer limited access to the Platform for a period of thirty (30) days following termination (the "Retrieval Period") for the sole purpose of allowing the Customer to retrieve any available Customer Materials. Following the Retrieval Period, Sensat may, at its discretion and without notice, destroy, delete or otherwise dispose of any Customer Materials and any backups thereof, and Sensat will not be liable for any loss or damage which may be incurred by the Customer or any third parties as a result of such deletion. If the Customer wishes to retrieve any Customer Materials following the Retrieval Period, it shall notify Sensat in writing and Sensat and the Customer will discuss the feasibility of such retrieval and, if applicable, the incurring by the Customer of any reasonable handling and/or retrieval fees incurred by Sensat.
16. Governance and notices
16.1 Each party shall nominate an appropriate individual who will act as its primary day-to-day representative and to whom all communications concerning this Contract may be addressed, whose name and contact details are set out in the Order Form. Either party may change its representative by giving fourteen (14) days’ prior written notice to the other.
16.2 Notices given under this Contract shall be in writing, in the English language, and sent by email to the relevant party's representative specified in the Order Form and, in the case of Sensat, copied to email@example.com (or such other email address as may be notified by Sensat to the Customer). They shall be deemed given by the sender and received by the addressee on the same Business Day as received according to the recipient's email system (if received within normal business hours), or otherwise on the next Business Day.
17. Transferring the Contract, and subcontracting
17.1 Subject to clause 17.2, neither party may assign, transfer, mortgage, charge, or otherwise dispose of the benefit of this Contract (or any part of it) without the prior written agreement of the other.
17.2 Sensat may assign all or any of its rights under this Contract to any of its Affiliates without the consent of the Customer.
17.3 Sensat may delegate the performance of any of its obligations under this Contract without the consent of the Customer, except as otherwise expressly provided in the Data Processing Schedule. If it delegates the performance of its obligations, Sensat shall remain liable for their proper performance.
18. Resolving disputes
18.1 If any dispute arises out of or in connection with the Contract, directors or other senior representatives of the parties with authority to settle the dispute shall, within fourteen (14) days after receipt of a written request from one party by the other party, meet (virtually) in a good faith effort to resolve the dispute.
18.2 If the parties are unable to resolve the dispute within twenty-eight (28) days of the request made under clause 18.1, either party may refer the matter for mediation in accordance with the Centre for Effective Dispute Resolution Model Mediation Procedure or for final resolution by arbitration under London Court of International Arbitration Rules, which are deemed to be incorporated by reference into this clause 18.2.
18.3 Mediation: Unless otherwise agreed between the parties, the mediator will be nominated by the Centre for Effective Dispute Resolution. To initiate the mediation a party must give notice in writing to the other party to the dispute requesting a mediation, with a copy of the request to the Centre for Effective Dispute Resolution. The mediation will start not later than thirty (30) days after the date of the mediation notice, or such other period as the parties may agree in writing.
18.4 Arbitration: The number of arbitrators shall be one (1) unless the parties agree that the dispute would require three (3). The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. The parties agree that the existence and content of the arbitration, and the terms of any order or award made in the arbitration shall, except as may be required by law, be confidential. Judgment upon any award(s) rendered by the arbitrators may be entered in any court having jurisdiction thereof.
18.5 If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the parties may agree in writing, either party may refer the matter for final resolution by arbitration under clause 18.2, or commence legal proceedings.
18.6 Nothing in this clause 18 shall limit the right of any party to seek injunctive or other interim relief in any jurisdiction at any time.
18.7 This Contract and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with the laws of England. Except as otherwise expressly provided in this Contract, or in the case of arbitration in which case clause 18.4 shall apply and the English courts shall have non-exclusive jurisdiction, the parties shall submit to the exclusive jurisdiction of the Courts of England.
19. Entire agreement
19.1 The Contract constitutes the entire agreement and understanding between the parties relating to its subject matter, and supersedes and extinguishes any other agreement or understanding (written or oral) between the parties relating to the same subject matter.
19.2 All terms, representations, and obligations implied by statute, common law, trade usage, course of dealing or otherwise are excluded to the fullest extent permitted by law. This includes implied terms of merchantability or fitness for a particular purpose, or that anything supplied by Sensat under the Contract will meet the Customer's requirements or work in combination with any third party software, hardware, or services. In particular, Sensat does not guarantee that the Subscription Services or anything else supplied under the Contract will be uninterrupted or error-free and the Customer acknowledges that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of communications networks and facilities, including the internet. Sensat makes no representations, whether express or implied, and excludes any liability for any representations to the fullest extent permitted by law.
19.3 Neither party shall rely on, nor shall have any remedy in respect of, any promise, assurance, agreement, statement, warranty, undertaking or representation made (whether innocently or negligently) by any other party or any other person, except as expressly set out in the Contract and in respect of which its sole remedy shall be for breach of contract. Any such promise, assurance, agreement, statement, warranty, undertaking or representation, including any advertising or description contained in any catalogue or brochure, is hereby excluded and withdrawn.
19.4 Nothing in this clause shall exclude the liability of either party for fraud or fraudulent misrepresentation.
20. Variations to this Contract
20.1 Save as expressly permitted by this Contract, no variation of this Contract shall be effective unless it is in writing, it is signed by or on behalf of each of the parties to that Contract and it references the relevant provisions of the Contract that have been varied.
20.2 Sensat and the Customer may vary (or terminate) this Contract in accordance with its terms without the consent of any third party.
21. Waivers and unenforceable provisions
21.1 The rights and remedies of the parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the parties. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
21.2 If any provision or part of this Contract is illegal, unlawful, void or unenforceable due to any Law, it shall be deemed to be deleted and the remaining provisions of the Contract shall continue in full force and effect.
22. Signature of this Contract
This Contract may be executed in any number of counterparts and by the different parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy. A 'signature' may include a handwritten 'wet ink' signature, a digital signature, or any other electronic act indicating consent or acceptance including a typed-name, clicking a website button or incorporating a scanned manuscript signature into a document or email.
23. Definitions and interpretation
In this Contract, unless the context otherwise requires, these terms will be given the following meanings:
"Acceptable Use Terms" means the terms that set out a list of acceptable and unacceptable conduct and behaviour that apply to the use of the Platform, which are available at https://www.sensat.co/legal-sensat-platform-acceptable-use-terms;
"Add-ons" means any add-ons to the Plan as specified in the Order Form or as otherwise agreed between the Customer and Sensat;
"Affiliate" means in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time;
"Applicable Law" means any law, statute, by-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation or notice of any regulatory body, applicable to the relevant party;
"Business Day" means a day not being a Saturday, Sunday, bank or public holiday on which trading banks are generally open for business in the City of London;
"Change" has the meaning given in clause 13.1;
"Charges" means the amount set out in the Order Form;
"Charging Period" is the period specified in the Order Form and provides the periodicity with which the Charges are invoiced;
"Confidential Information" means this Contract and all materials, data and other documents which are disclosed by one party to the other in fulfilling the provisions and intent of the Contract or which are otherwise provided to the other in the contemplation of or the performance of the Contract;
"Contract" has the meaning given in clause 1.1;
"Contract Year" means each successive twelve (12) month period commencing on the Effective Date and on each anniversary thereof, or as otherwise agreed between Sensat and the Customer;
"Control" means where a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and "Controls" and "Controlled" shall be interpreted accordingly;
"Customer" means the person identified as such in the Order Form;
"Customer Materials" means all data, information, documents, and materials provided, uploaded, shared, transferred or otherwise communicated electronically by the Customer or the Customer’s User to the Subscription Services, whether directly or indirectly via any third party application, excluding the Sensat Materials;
"Data Processing Schedule" means the document detailing the terms relating to the collection, storage, and use of personal data, the current version of which is available at https://www.sensat.co/legal-data-processing-schedule;
"Effective Date" means the date specified as such in the Order Form (and if not specified shall be the date on which the Customer subscribes to the Subscription Services in the Order Form);
"Extension Period" means the extension period agreed between the Customer and Sensat which shall not be less than, and if not specified or agreed shall be, three (3) months commencing immediately after the expiry of the Initial Term or the then-current Extension Period;
"Force Majeure Event" means an event or circumstance to the extent it is beyond the reasonable control of the relevant party and which prevents or impairs performance of an obligation of that party under this Contract;
"Indemnified Claim", "Indemnified Party" and "Indemnifying Party" have the meanings given in clause 6;
"Initial Term" means the period of time specified as such in the Order Form and, if not specified or agreed, shall be twelve (12) months from the Effective Date, but which in any event shall not be less than three (3) months from the Effective Date;
"Intellectual Property Rights" means patents and applications for patents; trade marks, service marks, and domain names, and applications for the same; unregistered trade marks and rights in trade names and business names; copyright (including copyright in computer software and databases); know how; database rights; rights in designs and rights in inventions; and any rights of the same or similar effect or nature as any of the foregoing;
"Jurisdiction Specific Terms" means the terms set out at https://www.sensat.co/legal-jurisdiction-specific-terms;
"Material Change" has the meaning given in clause 13.3;
"Open Source Software" means software licensed on terms approved by the 'Open Source Initiative' as being compliant with the 'Open Source Definition';
"Order Form" means the order form which accompanies these Platform Terms, and which is identified as such;
"Payment Term" means the period of time within which invoices are payable as measured from the date of receipt by the Customer, as specified in the Order Form;
"Plan" means the plan for the Subscription Services as specified in the Order Form and described in any applicable Service Schedule;
"Platform" means the cloud-based platform hosted and managed by Sensat and made available to the Customer via the internet;
"Platform Terms" means these terms and conditions which govern the use of, and access to, the Platform and the Subscription Services;
"Retrieval Period" has the meaning given to it in clause 15.7;
"Sensat" means Sensat Digital Limited, a private company incorporated and registered in England and Wales under registration number 09869690 and whose registered office address is at 86-90 Paul Street, London EC2A 4NE;
"Sensat Materials" means any data, works and/or materials owned or created by Sensat or its licensors whether independently or in connection with the Subscription Services, including any data which is derived from the Customer’s or a User’s use of the Subscription Services or the processing of Customer Materials, but excluding any materials in which the Intellectual Property Rights have not been assigned to the Customer;
"Service Levels" means those standards of performance relating to the Platform which Sensat aims to meet or exceed;
"Service Level Agreement" means the document detailing the Service Levels which is available at https://www.sensat.co/legal-service-level-agreement;
"Service Schedule" means the document or information detailing or setting out, amongst others, a description of the Subscription Services and associated functionalities and permissions, as notified or provided to the Customer by Sensat;
"Service Period" means the period during which the Subscription Services are to be provided under this Contract in accordance with clause 2;
"Subscription Services" means the provision by Sensat of access to, and use of, the Platform by a Customer pursuant to a Plan, as may be described in a Service Schedule or as otherwise notified to a Customer with reference to the Plan and any Add-ons;
"Tax" means any present or future tax, levy, deduction, charge, or duty, including value added tax as provided for in the Value Added Tax Act 1994 or any other similar tax that is imposed in any jurisdiction including any goods and services tax;
"Third Party Software" means software or other code which is proprietary to a third party (including any Open Source Software);
"User" means an individual who is authorised by the Customer to directly or indirectly access or use the Subscription Services on behalf of the Customer and/or access or use any Customer Materials via the Subscription Services;
"User Terms of Access" means the terms that govern the Users' access and use of the Platform, which are available at https://www.sensat.co/legal-sensat-user-terms-of-access; and
"Virus" means virus, logic bomb, worm, trojan horse and any other type of disruptive, destructive, deceptive, or nuisance program or malicious code and any code that operates to disable or interfere with any software or information technology systems.
23.1 In this Contract, unless the context otherwise requires:
(a) words in the singular shall include the plural and words in the plural shall include the singular;
(b) words denoting any gender include all genders;
(c) the headings are for convenience only and shall not affect the construction of the Contract;
(d) references to each party herein include references to its successors in title and permitted assigns. If a party comprises more than one person, the Contract will apply to them jointly and severally;
(e) references to "includes" or "including" shall be read as being immediately followed by the words 'without limitation'; and
(f) any capitalised terms (or terms beginning with a capital letter) that are used but are not defined in the Contract shall be given their generally accepted meaning in the information technology industry or, where there is no such generally accepted meaning, their ordinary meaning within the context of the Contract.