IMPORTANT – PLEASE READ CAREFULLY: BY PLACING AN ORDER WITH US FOR THE EDIFIT FRAMEWORK SOFTWARE AND ACCEPTING THIS LICENCE OR BY DOWNLOADING, INSTALLING, RUNNING, ACCESSING OR USING THE SOFTWARE, YOU ARE AGREEING TO ALL OF THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THESE TERMS CAREFULLY BEFORE TAKING SUCH ACTIONS. IF YOU DO NOT AGREE WITH OR DO NOT HAVE AUTHORITY TO AGREE TO ANY OF THE TERMS OF THIS LICENCE ON BEHALF OF YOUR COMPANY OR ORGANISATION, PLEASE DO NOT ACCEPT THESE TERMS OR OTHERWISE ATTEMPT TO DOWNLOAD THE SOFTWARE IN ANY WAY.
This licence agreement (Licence) is an agreement between: (i) the company or organisation named in the Checkout Process (Customer); and (ii) Edifit Limited of Union House, 111 New Union Street, Coventry, England, CV1 2NT (Edifit) for:
- the Edifit Framework software provided by Edifit (Software), which may include the Edifit Document Coach Add-In and the Edifit Model Governance Add-In if purchased by the customer in the Checkout Process; and
- printed materials and online documents made available to the Customer from time to time which sets out a description of the Software and user instructions for the Software (Documents).
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this section apply in this Licence.
| Authorised BiZZdesign Reseller | means a reseller authorised by BiZZdesign to licence the BiZZdesign Platform directly to the Customer |
| Authorised Users | those employees, agents and independent contractors of the Customer who are authorised by the Customer to Use the Software and the Documents |
| BiZZdesign | means either: (a) BiZZdesign UK Ltd, with company number 07594061 and its registered office at 111 Buckingham Palace Road, Victoria Westminister, London SW1W 0SR; or (b) an affiliate of BiZZdesign UK Ltd |
| BiZZdesign Platform | means the platform known by the parties as the BiZZdesign Team Server Platform |
| BiZZdesign Platform URL | means the domain name provided for the Customer’s BiZZdesign Platform which is provided by or on behalf of the Customer as part of the Checkout Process |
| Checkout Process | the process followed by or on behalf of the Customer to place an Order for the Software on Edifit’s website |
| Customer Data | the data inputted by the Customer, Authorised Users, or Edifit on the Customer’s behalf for the purpose of using the Software or facilitating the Customer’s use of the Software |
| Data Protection Legislation | (a) all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and (b) any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party |
| Effective Date | means the date your Order is accepted by Edifit in accordance with section 7.4 of the Website Terms and Conditions |
| Fees | the subscription fees payable by the Customer to Edifit, as specified as part of the Checkout Process |
| Insolvency Event | means any of the following insolvency-related events: (i) the party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986; (ii) the party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (iii) the party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986; (iv) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (v) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party; (vi) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; (vii) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party; (viii) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (ix) the party ceases or threatens to cease to carry on business; or (iix) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (i) – (ix) (inclusive) |
| Order | means the order placed by or on behalf of the Customer for the Software in accordance with section 7.1 of the Website Terms and Conditions which incorporates the terms of this Licence pursuant to the Checkout Process |
| Subscription Commencement Date | means: (a) where Edifit grants a trial period to the Customer for the Software, the date Edifit issues a licence key to the Customer in accordance with Section 2.2; or (b) in all other circumstances, the date Edifit receives the Fee payable from the Customer in respect of the Initial Subscription Term |
| Term | has the meaning given to it in Section 2.5.1 or 2.5.2 (as applicable) |
| Use | means to download, install, load, execute, store, transmit, distribute, access, display, use, copy in object code form, and to allow Authorised Users to download, install, load, execute, store, access, display and copy in object code form |
| Virus | any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices |
| Website Terms and Conditions |
means Edifit’s website terms and conditions at: https://edifit.co.uk/terms-of-use/, as may be updated from time to time |
1.2 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Licence under that statute or statutory provision
1.3 The Schedules form part of this Licence and shall have effect as if set out in full in the body of this Licence. Any reference to this Licence includes the Schedules.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 References to personal data, controller, processor, data subject or personal data breach shall have the meaning given to it in the Data Protection Legislation.
2. GRANT AND SCOPE OF LICENCE
2.1 Edifit may, in its sole discretion, grant a trial period to Customer and its Authorised Users to Use the Software and Documents in accordance with the licence granted under Section 3 and subject always to the terms of this Licence. Any trial period shall be for the period stated in the Order confirmation issued to the Customer in accordance with Section 7.4 of the Website Terms and Conditions.
2.2 Edifit shall issue a licence key to the Customer on the Subscription Commencement Date which shall allow the Customer and its Authorised Users to Use the Software and Documents in accordance with the licence granted under Section 3 and subject always to the terms of this Licence. Customer acknowledges it will be unable to Use the Software and the Documents without the licence key.
2.3 Subject to payment of the Fees (where applicable), the restrictions set out in Section 4 and the Customer’s compliance with the other terms and conditions of this Licence, with effect from the Subscription Commencement Date, Edifit grants to Customer a non-exclusive, non-transferable, revocable licence to permit its Authorised Users to Use the Software and the Documents during the Term solely for the Customer’s internal business operations.
2.4 The licence under Section 2.3 is granted for the BiZZdesign Platform URL on an enterprise-wide basis to the Customer and its Authorised Users. Accordingly, the Customer acknowledges and agrees that:
2.4.1 the licence grant is limited to the BiZZdesign Platform URL provided by the Customer as part of the Checkout Process and the Customer and its Authorised Users shall not be permitted to Use the Software on any other platform (including any other BiZZdesign Platform); and
2.4.2 this licence grant shall not include and/or extend to any affiliates of the Customer and the Customer shall not be entitled to grant any sub-licences under the terms of this Licence.
2.5 The Licence shall, unless otherwise terminated in accordance with its terms, commence on the Effective Date and shall continue thereafter for the duration of the Term, which shall be defined as follows:
2.5.1 if Edifit grants the Customer a trial period for the Software, the Term shall only be for the period set out in the Order confirmation issued by Edifit for the Software in accordance with section 7.4 of the Website Terms and Conditions. This Licence shall automatically terminate upon expiry of the Term;
2.5.2 in all other cases:
(a) the period between the Effective Date and the Subscription Commencement Date shall form part of the Term (where the Subscription Commencement Date is later than the Effective Date);
(b) where the Subscription Commencement Date:
(i) is the 1st of a calendar month, the initial term shall be for a period of 12 months from the Subscription Commencement Date; or
(ii) falls on a date other than the 1st of a calendar month, the initial term shall be for the remainder of that calendar month and for a period of twelve months thereafter,
(in each case, the Initial Subscription Term); and
(c) thereafter, this Licence shall be automatically renewed for successive periods of 12 months (each an Extended Term), unless either party notifies the other party of termination in writing at least 90 days’ before the end of the Initial Subscription Term or any Extended Term, in which case this Licence shall terminate upon expiry of the applicable Initial Subscription Term or Extended Term. The period specified in Section 2.5.2(a), together with the Initial Subscription Term and any subsequent Extended Terms shall constitute the Term for the purpose of this Section 5.2.
3. BIZZDESIGN PLATFORM
3.1 The Customer acknowledges that the Software is an add-in to the BiZZdesign Platform and therefore the Software may be deployed by the Customer on the BiZZdesign Platform URL following receipt of the Customer’s licence key pursuant to Section 2.2. Accordingly:
3.1.1 the Customer shall ensure it has a valid and subsisting agreement in place with BiZZdesign or an Authorised BiZZdesign Reseller for its receipt and use of the BiZZdesign Platform (BiZZdesign Agreement) and the Customer acknowledges and agrees that its Use of the Software and Documents is conditional on the Customer having such BiZZdesign Agreement in place;
3.1.2 the Bizzdesign Agreement is between the Customer and BiZZdesign or the Authorised BiZZdesign Reseller (as applicable). Edifit makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the BiZZdesign Platform and/or under the BiZZdesign Agreement; and
3.1.3 use of the BiZZdesign Platform is at Customer’s own risk.
3.2 The Customer shall notify Edifit without undue delay if its BiZZdesign Agreement terminates and/or expires or if its access to the BiZZdesign Platform is suspended by BiZZdesign. In these circumstances, Edifit will have no liability and/or obligation whatsoever to make the Software available to Customer and the Customer further acknowledges and agrees it may be unable to continue Using the Software in these circumstances.
4. GENERAL RESTRICTIONS
4.1 The Customer shall not access, store, distribute or transmit any Virus, or any material during the course of its use of the Software that:
4.1.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.1.2 facilitates illegal activity;
4.1.3 depicts sexually explicit images;
4.1.4 promotes unlawful violence;
4.1.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.1.6 is otherwise illegal or causes damage or injury to any person or property.
4.2 The Customer shall not:
4.2.1 except as may be permitted by applicable law:
(a) 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 Documents (as applicable) in any form or media or by any means;
(b) make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs other than the BiZZdesign Platform (as set out in Section 3);
(c) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
4.2.2 access all or any part of the Software and Documents in order to build a product or service which competes with the Software and/or the Documents;
4.2.3 rent, lease, sub-license, loan, translate, merge, adapt, vary, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documents available to any third party expect the Authorised Users; or
4.2.4 introduce or permit the introduction of any Virus into Edifit’s network and information systems.
4.3 Without prejudice to any other rights and remedies of Edifit, Edifit reserves the right to disable and/or suspend the Customer’s access to all or any part of the Software if Edifit determines (acting reasonably) that Customer is in breach of this Section 4 and Edifit shall be under no obligation to provide any or all of the Software until such breach has been rectified by Customer.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall:
5.1.1 provide Edifit with:
(a) all necessary cooperation in relation to this Licence; and
(b) all necessary access to such information as may be required by Edifit,
in order to provide the Software, including Customer Data, security access information and configuration services;
5.1.2 ensure that the Software and Documents are used by the Authorised Users in accordance with the terms of this Licence and shall be responsible for any Authorised User’s breach of this Licence;
5.1.3 comply with all applicable laws and regulations with respect to its activities under this Licence;
5.1.4 obtain and maintain all necessary licences, consents and permissions necessary for Edifit to perform its obligations under this Licence;
5.1.5 ensure that its network and systems comply with any relevant specifications provided by Edifit from time to time; and
5.1.6 be, to the extent permitted by applicable law and except as otherwise expressly provided in this Licence, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Edifit’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
6. CUSTOMER DATA
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Edifit shall be for Edifit to use reasonable commercial endeavours to support the Customer in restoring the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Customer. Edifit shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
6.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 6 is in addition to, and does not relieve, remove or replace a party’s obligations or rights under the Data Protection Legislation. If Edifit processes any personal data supplied to it by or on behalf of the Customer pursuant to this Licence, the terms of Schedule 1 shall apply.
7. FEES
7.1 The Customer shall pay the Fees in accordance with this Section 7.
7.2 Unless Edifit has granted a trial period to the Customer to Use the Software in accordance with Section 2.1, the Customer shall, prior to or on the Effective Date, provide to Edifit valid, up-to-date and complete credit card details or approved purchase order information acceptable to Edifit and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
7.2.1 its credit card details to Edifit, the Customer hereby authorises Edifit to bill such credit card:
(a) on the Effective Date for the Fees payable in respect of the Initial Subscription Term; and
(b) subject to Section 2.5.2(c), on each anniversary of the Effective Date for the Fees payable in respect of the next Extended Term;
7.2.2 its approved purchase order information to Edifit, Edifit shall invoice the Customer:
(a) on the Effective Date for the Fees payable in respect of the Initial Subscription Term; and
(b) subject to Section 2.5.2(c), at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Extended Term,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
7.3 If Edifit has not received payment within a period of 30 days after the due date, and without prejudice to any other rights and remedies of Edifit:
7.3.1 Edifit may, without liability to the Customer, disable the Customer’s, account and access to all or part of the Software and Edifit shall be under no obligation to provide any or all of the Software while the invoice(s) concerned remain unpaid; and
7.3.2 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 Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this Licence shall be payable in pounds sterling and are exclusive of value added tax, which shall be added to Edifit’s invoice(s) at the appropriate rate.
7.5 The Fees are due and non-refundable even if this Licence is terminated earlier than the expiration of the Initial Subscription Term or Extended Term.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges and agrees that Edifit and/or its licensors own all intellectual property rights in the Software and the Documents, that rights in the Software are licensed (not sold) to the Customer, and that the Customer has no rights in, or to, the Software or the Documents other than the right to use them in accordance with the terms of this Licence as expressly stated herein.
8.2 Edifit confirms that it has all the rights in relation to the Software and the Documents that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Licence.
9. CONFIDENTIALITY
9.1 Each party undertakes that it shall not at any time during this Licence, and for a period of five years after termination or expiry of this Licence, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Section 9.2. The Customer acknowledges that details of the Software and the Documents and the results of any performance tests of the Software constitute Edifit’s confidential information.
9.2 Each party may disclose the other party’s confidential information:
9.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Licence. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Section 9; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 Each party shall take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Licence.
9.4 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Licence.
10. EDIFIT’S OBLIGATIONS
10.1 Edifit warrants that the Software will perform substantially in accordance with the Documents and shall provide the Software with reasonable skill and care.
10.2 The warranty at Section 10.1 shall not apply to the extent of any non-conformance which is caused by:
10.1.1 use of the Software contrary to Edifit’s instructions, or modification or alteration of the Software by any party other than Edifit or Edifit’s duly authorised contractors or agents;
10.1.2 if the defect or fault in the Software results from the Customer having used the BiZZdesign Platform in breach of its BiZZdesign Agreement; or
10.1.3 a defect or fault with the BiZZdesign Platform.
10.3 If the Software does not conform to the undertaking in Section 10.1, Edifit will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranty set out in Section 10.1.
10.4 Edifit:
10.4.1 does not warrant that:
(a) the Customer’s use of the Software will be uninterrupted or error-free; or
(b) that the Software, Documents and/or the information obtained by the Customer through the Software will meet the Customer’s requirements; and
10.4.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software and Documents may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.5 Edifit warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Licence.
11. SUPPORT SERVICES
11.1 Edifit shall provide the following support services in relation to the Software:
11.1.1 Customer shall raise any requests for support by sending an email to support@edifit.co.uk or via Edifit’s service desk portal at https://support.edifit.co.uk; and
11.1.2 Edifit shall, at no additional cost to the Customer, use commercially reasonable endeavours to respond to emails and queries on the service desk portal within 3 business days of receipt. The Customer may purchase enhanced support services separately at Edifit’s then current rates.
11.2 For the avoidance of doubt, the scope of any support services provided by Edifit pursuant to this Licence shall be limited to the Software. Any queries in relation to the operation of the BiZZdesign Platform should be directed to BiZZdesign.
12. INDEMNITY
12.1 The Customer shall defend, indemnify and hold harmless Edifit against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software and/or the Documents.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided for in this Licence:
13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Software and the Documents by the Customer and for conclusions drawn from such use;
13.1.2 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 Licence; and
13.1.3 the Software and the Documents are provided to the Customer on an “as is” basis. The Customer acknowledges and agrees that the Software has not been developed to meet the Customer’s individual requirements.
13.2 Nothing in this Licence shall limit or exclude either party’s liability for:
13.2.1 death or personal injury resulting from our negligence;
13.2.2 fraud or fraudulent misrepresentation;
13.2.3 any other liability that cannot be excluded or limited by English law.
13.3 Subject to Sections 13.1 and 13.2:
13.3.1 Edifit shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any: (i) loss of profits, sales, business, or revenue, business interruption; (ii) loss of anticipated savings, loss or corruption of data or information; (iii) loss of business opportunity, goodwill or reputation; or (iv) any special, indirect or consequential loss, damage, charges or expenses, however arising under or in connection with this Licence.
13.3.2 Edifit’s maximum aggregate liability arising under or in connection with this Licence whether in contract, tort (including negligence) breach of statutory duty or otherwise, shall be limited to a sum equal to the total Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate this Licence with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of this Licence which the other party fails to remedy (if remediable) within 14 days after being notified in writing to do so; or
14.1.2 the other party suffers an Insolvency Event.
14.2 This Licence shall automatically terminate with immediate effect if for any reason the Customer’s BiZZdesign Agreement terminates and/or expires.
14.3 On termination for any reason:
14.3.1 all rights granted to the Customer under this Licence shall immediately terminate and the Customer shall immediately cease all activities authorised by this Licence (including its Use of the Software and the Documents);
14.3.2 the Customer must immediately and permanently retrieve its Customer Data and delete or remove the Software from all computer equipment in the Customer’s possession, and immediately destroy or return to Edifit (at Edifit’s option) all copies of the Software and Documents then in the Customer’s possession, custody or control and, in the case of destruction, certify to Edifit that it has done so; and
14.3.3 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 Licence which existed at or before the date of termination shall not be affected or prejudiced.
15. NOTICES
15.1 Any notice required to be given under this Licence shall be in writing and shall be delivered by email to the address the Customer provided in accordance with the Checkout Process for the Software or Edifit’s service desk portal which is linked to the email address nominated by the Customer. Any notice provided by Edifit will be deemed received and properly served 24 hours after it is first posted on Edifit’s service desk portal or 24 hours after an email is sent.
15.2 In proving the service of any notice, it will be sufficient to prove, in the case of posting on Edifit’s service desk portal, that the portal was generally accessible to the public for a period of 24 hours after the first posting of the notice and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.
16. EVENTS OUTSIDE EDIFIT’S CONTROL
16.1 Edifit will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by an Event Outside Edifit’s Control. An Event Outside Edifit’s Control is defined below in Section 16.2.
16.2 An Event Outside Edifit’s Control means any act or event beyond Edifit’s reasonable control, including without limitation failure of public or private telecommunications networks or failure of the BiZZdesign Platform.
16.3 If an Event Outside Edifit’s Control takes place and affects the performance of its obligations under this Licence, Edifit’s obligations under this Licence will be suspended and the time for performance of Edifit’s obligations will be extended for the duration of the Event Outside Edifit’s Control.
17. OTHER IMPORTANT TERMS
17.1 The Customer shall not, without the prior written consent of Edifit, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Licence. Edifit may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this
17.2 This Licence does not confer any rights on any person or party (other than the parties to this Licence and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
17.3 This Licence and the Website Terms and Conditions (as referred to herein) constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter. Each party agrees that it 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 Licence and/or the Website Terms and Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence and/or the Website Terms and Conditions.
17.4 No failure or delay by a party to exercise any right or remedy provided under this Licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 The terms of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining terms will remain in full force and effect.
17.6 This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. Each party irrevocably agrees to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim arising out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1
Data Processing Provisions
1. Customer obligations
1.1 Where the Customerexpects that Edifit will process personal data, the Customer shall:
1.1.1 ensure that the personal data is accurate and up-to-date, and remains so during the period of the processing;
1.1.2 ensure that all necessary consents under the Data Protection Legislation have been obtained for the supply of the personal data and its processing by Edifit, and if requested by Edifitshall promptly provide written confirmation of the same; and
1.1.3 not do anything in connection with the personal data that would or might cause Edifitto be in breach of any Data Protection Legislation or other applicable law and/or to incur liability to any data subject.
2. Edifit obligations
2.1 Annex A to this Schedule 1 describes the subject matter, duration, nature and purpose of processing, the types of personal data and categories of data subject in respect of which Edifit may process pursuant to this Licence (Personal Data). To the extent that Edifitprocesses Personal Data on behalf of the Customer in connection with this Licence, Edifit shall:
2.1.1 solely process the Personal Data for the purposes of fulfilling its obligations in this Licence and in compliance with the Customer’swritten instructions as set out in this Licence;
2.1.2 ensure that any persons used by Edifitto process Personal Data are required to treat the Personal Data confidentially;
2.1.3 take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data taking into account the nature of the processing and harm that might result from such unauthorised or unlawful processing, loss, destruction or damage and the nature of the Personal Data to be protected including all such measures that may be required to ensure compliance with Article 32 of the General Data Protection Regulation;
2.1.4 taking into account the nature of the data processing activities undertaken by Edifitand the information available to Edifit:
(a) provide all reasonable possible assistance and co-operation to enable the Customerto fulfil its obligations to respond to requests from individuals exercising their rights under the Data Protection Legislation;
(b) notify the Customeras soon as reasonably practicable if Edifit or any sub-contractor engaged by on behalf of Edifit suffers a personal data breach relating to Personal Data that is processed in connection with this Licence;
(c) following a notification under paragraph 2.1.4(b), provide reasonable co-operation, information and assistance to the Customeras may be necessary to enable the Customer to notify relevant supervisory authorities and data subjects of the personal data breach to the extent such notification is required under the Data Protection Legislation;
2.1.5 assist the Customerwith carrying out data protection impact assessments and consulting with relevant supervisory authorities where such assessments and/or consultation are required pursuant to the Data Protection Legislation, provided that the scope of such assistance shall be agreed by the parties in advance and the Customer shall pay Edifit’s reasonable costs incurred in providing such assistance;
2.1.6 upon termination of this Licence, delete all existing copies of Personal Data, unless applicable law requires storage of the Personal Data; and
2.1.7 engage an independent third party to carry out an annual audit of Edifit in connection with demonstrating Edifit’s compliance with this Schedule 1 and make available an annual report to the Customer upon request. If there are any material deficiencies in the audit report, upon reasonable request with not less than 4 weeks’ notice, and provided that the Customershall not make more than one request in any rolling 12 month period, Edifit shall allow for and contribute to an audit by the Customer (acting reasonably), including inspections, conducted by or on behalf of the Customer.
2.2 Permitted Subcontractors and Transfers of personal data: In performing its obligations under this Licence, Edifit may appoint one or more third parties as sub-processors in accordance with Section 17.1. Edifit remains responsible to the Customer for the actions of its sub-processors and shall remain bound by its obligations under this Schedule 1. A list of sub-processors used by Edifit is maintained on its website https://edifit.co.uk/. Edifit shall notify the Customer of any changes to the list of sub-processors and shall give the Customer an opportunity to object to the appointment or replacement of a sub-processor within 30 days of the notification. If the Customer objects to the appointment of a sub-processor on reasonable grounds relating to data protection, the parties shall work together in good faith to resolve the objection. If the objection cannot be resolved within a reasonable period of time, at Edifit’s option, either i) Edifit shall not use that sub-processor; or ii) the Customer shall be entitled to terminate the portion of the Software that requires the use of that sub-processor. Edifit shall put in place a written contract with any sub-processor which includes obligations at least equivalent to those obligations required by the Data Protection Legislation.
2.3 The Customer acknowledges that such sub-processors may be located outside the UK and the European Economic Area, in which case the Customer authorises Edifit to transfer Personal Data to or access Personal Data from such locations provided that Edifit has put in place and maintains a valid cross-border transfer mechanism under the Data Protection Legislation, so that Edifit and (where appropriate) the Customer can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals.
2.4 Anonymous Data Analytics: Subject always to its duties under this paragraph 2, Edifitmay from time to time use data processed by the Software to produce statistical analyses, market data and predictive models (Analytics). No Personal Data will be used for the purposes of Analytics.
ANNEX A
| Subject matter of processing | Provision of the Software in accordance with the terms of this Licence |
| Duration of processing | For the Term |
| Nature and purpose of the processing | Collecting, sorting, storing, access, analysing, retrieving and hosting (only if the Software is deployed on a SaaS basis) Purpose of processing is provision of the Software and providing support services (where required in accordance with the terms of this Licence) |
| Type of personal data | Name, email, contact details, IP address |
| Categories of data subject | Business customers |