TERMS & CONDITIONS

THESE TERMS AND CONDITIONS ALONG WITH THE MASTER SERVICES AGREEMENT, THE DATA PROCESSING ADDENDUM AND ANY OTHER TERMS AND POLICIES OF HALO REFERENCED HEREIN, EACH AS AMENDED FROM TIME TO TIME (THE “AGREEMENT”) CONSTITUTE A LEGALLY BINDING AGREEMENT GOVERNING YOUR ACCESS TO, AND THE USE OF THE SERVICES (AS DEFINED BELOW).

IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUN BY, THE TERMS OF THIS AGREEMENT (AS DEFINED IN CLAUSE 21.2 BELOW) OR IF THE PERSON PURPORTING TO BIND YOU TO THE AGREEMENT DOES NOT HAVE AUTHORITY TO BIND YOU, PLEASE DO NOT ACCESS OR USE THE SERVICES.

YOU ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF:
CLAUSE 1.2 (USER SUBSCRIPTION)
CLAUSE 4 (CUSTOMER DATA)
CLAUSE 5 (HALO OBLIGATIONS)
CLAUSE 6 (CUSTOMER OBLIGATIONS)
CLAUSE 9 (QUALITY OF HARDWARE)
CLAUSE 10 (PROPRIETARY RIGHTS)
CLAUSE 12 (INDEMNITY)
CLAUSE 13 (LIMITATION OF LIABILITY)
CLAUSE 14.3 (TERM AND TERMINATION)
CLAUSE 14.4 (TERM AND TERMINATION)
CLAUSE 14.6 (TERM AND TERMINATION)
CLAUSE 15 (SUSPENSION OF SERVICES)
CLAUSE 17 (FORCE MAJEURE)
CLAUSE 20.10 (GENERAL)
CLAUSE 20.11 (GENERAL)

 

1. USER SUBSCRIPTION

1.1 Subject to the restrictions set out in this Clause 1 and the other terms and conditions of the Agreement, HALO grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.

1.2 The Customer undertakes that (and shall procure that its authorised users andeach of them) (i) it shall not 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,: (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 Documentation (as applicable) in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.; (ii) it shall not (and shall procure that its Authorised Users and each of them shall not) tamper with, bypass or alter the security features of the Software or to circumvent any technical licensing protections for any reason, including but not limited to making Services and/or Documentation available for use by persons other than Authorised Users, or to discover the underlying source code; (iii) it shall not access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation; (iv) it shall procure that each Authorised User shall keep a secure password for his use of the Services and/or Documentation, that appropriate password policies (including frequency of change) will be applied and that each Authorised User shall keep his password confidential; (v) it shall permit HALO to audit the Services in order to establish the number of Authorised Users. Such audit may be conducted no more than once per year, at HALO’s expense, and this right shall be exercised with reasonable prior notice to the Customer; (vi) it shall not (and shall procure that its Authorised Users and each of them shall not) use the Services and/or Documentation to provide services to third parties; (vii) it shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; and (viii) it shall not attempt to obtain, or assist third parties in obtaining access to the Services and/or Documentation, other than as provided under this Clause 1.

1.3 The Customer shall use its best efforts to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify HALO.

1.4 The Customer shall not (and shall procure that its Authorised Users and each of them shall not) access, store, distribute or transmit any Viruses during the course of its use of the Services.

1.5 The rights provided under this Clause 1 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

2. SERVICES

2.1 HALO shall, during the Subscription Term, provide the Services and make available the Hardware and Documentation to the Customer on and subject to the terms of this Agreement.

2.2 HALO shall be entitled to make changes to the Services and such changes shall be notified to the Customer.

 

3. CHARGES AND PAYMENT

3.1 The Customer shall pay the Fees to HALO for the User Subscription and Hardware in accordance with this Clause 3 and Schedule 2, as may be adjusted from time to time in accordance with Clause 3.6 and/or Clause 3.7.

3.2 The Customer shall on the Effective Date provide its valid, up-to-date and complete billing details and any other relevant information required by HALO and HALO shall invoice the Customer: (a) on the Effective Date for the Fees payable in respect of the Initial Subscription Term; and (b) subject to Clause 14.1 at least 30 business days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period; and the Customer shall pay each invoice within 30 business days after the date of such invoice.

3.3 If HALO has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of HALO: (i) HALO may, without liability to the Customer, disable the Customer's and any of the Authorised Users’ passwords, accounts and access to all or part of the Services and HALO shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (ii) interest shall accrue on a daily basis on such due amounts at a rate equal to EURIBOR (as at 1 January and 1 July in each year) plus 8 percentage points, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.4 All amounts and fees stated or referred to in this Agreement: (i) shall be payable in either US dollars, Euro or Pound Sterling as specified in the quote provided to the Customer; (ii) are non-cancellable and non-refundable; and (iii) are exclusive of value added tax and of any sales tax, which (if applicable) shall be added to HALO's invoice(s) at the appropriate rate.

3.5 If, at any time whilst using the Services, the Customer exceeds the Fair Usage Limit, HALO may contact the Customer to advise of such excessive usage. If the excessive usage continues after receipt of a request from HALO to desist from or alter the nature of such usage, HALO shall charge the Customer, and the Customer shall pay, HALO's then current excess data storage fees. 

3.6 At any time during the Initial Subscription Term, HALO shall be entitled, once only, to increase any of the Relevant Charges, provided that: (i) it has given no less than 60 days' prior notice to the Customer, (ii) the amount of the increase to a given Relevant Charge shall not exceed an amount equal to seven percent of the amount of the Relevant Charge immediately before the increase.

3.7 3.7 At the start of each Renewal Period, HALO shall be entitled to increase any of the Relevant Charges, provided that it has given no less than 60 days' prior notice to the Customer.

 

4. CUSTOMER DATA

4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants to HALO sufficient rights to use the Customer Data in order to provide the Services to the Customer.

4.2 The Customer is solely responsible and assumes all risks for the Customer Data used in connection with the Services, including without limitation for any loss, damage, destruction, corruption, loss of access and/or use, alteration, breach or disclosure of Customer Data. The Customer acknowledges and agrees that it is solely responsible for and shall preserve the integrity of any, and all, Customer Data. 

4.3 The terms “Process” (and its derivatives), “Data Processor” and “Personal Data” shall have the meanings given to those terms in the applicable Data Protection Law (and references to "Personal Data" shall be construed as references to similar terms with the same or similar purpose used under applicable Data Protection Law as necessary).

4.4 The Customer shall comply with any and all Data Protection Law that applies to it in relation to any Personal Data or any data or information that is otherwise governed by applicable Data Protection Law Processed by the Customer in connection with this Agreement (“Protected Data”), including, without limitation, any and all Personal Data forming part of the Customer Data uploaded or otherwise submitted to the HALO Platform

4.5 Without prejudice to the generality of the above clause, if and to the extent that HALO processes Protected Data disclosed to HALO by Customer in connection with this Agreement, HALO shall carry out such Processing as a Data Processor and such processing shall be governed by Schedule 4 (data processing).

4.6 The Customer hereby covenants with and undertakes to HALO that: it shall at all times ensure it has a valid legal basis for the processing of Protected Data; and (ii) all Protected Data shall be collected and processed by the Customer for legitimate purposes and in accordance with applicable Data Protection Law at all times during the Customer's use of the Services.

 

5. HALO OBLIGATIONS

5.1 HALO undertakes to the Customer that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

5.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to HALO's instructions, or failure by the Customer or any of the Authorised Users to maintain the device or network used by them to access the Services, or modification or alteration of the Services by any party other than HALO or HALO's duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, HALO will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. In any event HALO does not represent or warrant that any such correction or substitution will be provided or provided within a specified period. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1.  Notwithstanding the foregoing, HALO: (i) does not warrant that the use of the Services by any of the Customer or any of the Authorised Users will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer or any Authorised User through the Services will meet the requirements of the Customer or of such Authorised User; (ii) does not warrant that any API, which may be used in connection with the services will be continuously available, will be uninterrupted or error-free; or that services, documentation and/or information obtained by the customer or any authorised user through the API will meet the requirements of the customer or of such authorised user, and (iii) 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 on its own behalf and on behalf of all of the Authorised Users that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.3 This Agreement shall not prevent HALO 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.

 

6. CUSTOMER OBLIGATIONS

6.1 The Customer undertakes that it shall: (i) provide HALO with: (a) all necessary co-operation and assistance in relation to this Agreement; and (b) all necessary access to such information as may be required by HALO, in order to provide the Services, including but not limited to Customer Data; (ii) comply with all applicable laws and regulations with respect to its activities under this Agreement; (iii) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, HALO may adjust any agreed timetable or delivery schedule as reasonably necessary; (iv) ensure that the Authorised Users use the Services, the Hardware and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any acts or omissions of the Authorised Users which would be in breach of the Agreement if they were the acts or omissions of the Customer; (v) obtain and shall maintain all necessary licences, consents, and permissions necessary for HALO, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services; and (vi) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to HALO'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.

6.2   The Customer undertakes that it shall carry and maintain in force, at all times during the Agreement, comprehensive insurance, insuring it against the financial consequences of its obligations under Clause 8.2.

6.3 The Customer shall indemnify HALO against any and all Losses incurred by or awarded against HALO as a result of the Customer’s breach of this Agreement or any acts or omissions of any of the Authorised Users which would be in breach of this Agreement if they were acts or omissions of the Customer.

6.4  Customer hereby grants HALO a limited, non-transferable, irrevocable license to (i) internally use and modify (but not disclose) Customer Data for the purposes of providing the Services and generating Aggregated Data, and (ii) use Aggregated Data for improving, testing and operating the Services. 

 

7. DELIVERY OF HARDWARE

7.1 HALO shall deliver the Hardware to the location set out in Schedule 1 or such other location as the parties may agree in writing at any time after HALO notifies the Customer that the Hardware are ready.

7.2 Any dates quoted for delivery of the Hardware are approximate only, and the time of delivery is not of the essence. HALO shall not be liable for any delay in delivery of the Hardware that is caused by a Force Majeure Event or the Customer's failure to provide HALO with adequate delivery instructions or any other instructions that are relevant to the supply of the Hardware.

 

8. TITLE AND RISK

8.1 The risk in the Hardware shall pass to the Customer on completion of delivery. Title to the Hardware shall not pass at any time to the Customer.

8.2   Where any item of Hardware is lost, stolen, destroyed or damaged beyond economical repair, the Customer shall pay to HALO on demand the full replacement costs of such Hardware as described in Schedule 2, and HALO may supply replacement Hardware to which the terms of this Agreement shall apply. 

 

9. QUALITY OF HARDWARE

9.1 HALO warrants that the Hardware shall:

(a) conform in all material respects with its description and specification; and 

(b) be free from material defects in design, material and workmanship.

9.2 Subject to 9.3, if:

(a) the Customer gives notice in writing to HALO within a reasonable time of discovery that some or all of the Hardware do not comply with the warranty set out in clause 9.1; 

(b) HALO is given a reasonable opportunity of examining such Hardware; and

(c) the Customer (if asked to do so by HALO) returns such Hardware to HALO's place of business at the Customer's cost,

HALO shall, at its option, repair or replace the defective Hardware.

9.3   HALO shall not be liable for the Hardware' failure to comply with the warranty set out in clause 9.1 if:

(a) the Customer makes any further use of such Hardware after giving a notice in accordance with clause 9.2;

(b) the defect arises because the Customer failed to follow HALO's oral or written instructions as to the storage, commissioning, use or maintenance of the Hardware;

(c) the Customer alters or repairs such Hardware without the written consent of HALO; or

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.

9.4   Except as provided in this clause 9, HALO shall have no liability to the Customer in respect of the Hardware' failure to comply with the warranty set out in clause 9.1.

 

10. PROPRIETARY RIGHTS

10.1 The Customer acknowledges and agrees that HALO and/or its licensors own all the Intellectual Property Rights in the Services, Software and the Documentation. This Agreement does not grant the Customer or any of the Authorised Users any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services, Software or the Documentation. The Customer shall notify HALO if it becomes aware of any unauthorised use of the whole or any part of the Services and the Documentation by any person or entity.

10.2 The Intellectual Property Rights in the Services, Software and the Documentation including any adaptions, modifications and updates to same (but excluding the API) are and shall remain vested in HALO.

10.3 halo makes no representation or warranty as to the existence, validity or enforceability of the intellectual property rights in any API, which may be used in connection with the services nor as to whether the same infringe on any intellectual property rights of third parties.

10.4 the customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that HALO may consider necessary or desirable to perfect the right, title and interest of HALO in and to the intellectual property rights in the services, software and/or the documentation provided by halo and including any adaptions, modifications and updates to same.

11. CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) can be demonstrated by written evidence was in the other party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other's Confidential Information in confidence and shall maintain the confidentiality of such Confidential Information using at least the same degree of care as it employs to safeguard its own Confidential Information, but no less than reasonable care. Each party shall not, unless required by law, make the other's Confidential Information available to any third party other than for the implementation of this Agreement, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

11.3 Each party shall ensure that its employees or agents are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party. 

11.4 Subject to Clause 11.5, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 The Customer shall be responsible for any loss, destruction, alteration or disclosure of the Confidential Information caused by any of the Authorised Users as if such loss, destruction, alteration or disclosure of the Confidential Information had been caused by the Customer itself. 

11.6 Notwithstanding ClauseS 11.4 and 11.5, each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.

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

11.8 HALO acknowledges that the Customer Data is the Confidential Information of the Customer.

 

12. INDEMNITY

The Customer shall defend, indemnify and hold harmless HALO against all Losses (including without limitation court costs and legal fees) arising out of or in connection with the Customer’s use, and/or the use by any of the Authorised Users, of the Services, Hardware, Documentation and/or the API (including the third party application). If any third party makes a claim against HALO that may reasonably be considered likely to give rise to a liability under this indemnity: (i) HALO shall give the Customer prompt notice of such claim; (ii) HALO shall provide reasonable co-operation to the Customer in the defence and settlement of such claim, at the customer’s expense; and (iii) the Customer shall be given sole authority to defend or settle such claim.

 

13. LIMITATION OF LIABILITY

13.1 This Clause 13 sets out the entire financial liability of HALO (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of: (i) any breach of this Agreement; (ii) any use made by any of the Customer or any of the Authorised Users of the Services, Software, Hardware and/or Documentation or any part of them; and (iii) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2 Except as expressly and specifically provided in this Agreement: (i) the Customer assumes sole responsibility for results obtained from the use of the Services, Software, Hardware and/or the Documentation by any of the Customer or any of the Authorised Users, and for conclusions drawn from such use. HALO shall have no liability for any damage caused by errors or omissions in any information or instructions provided to HALO by any of the Customer or any of the Authorised Users in connection with the Services, or any actions taken by HALO at the Customer's direction; and (ii) to the fullest extent permitted by applicable law the Services, Software, Hardware and/or the Documentation are provided to the Customer on an "as is" basis and HALO makes no warranties, representations, conditions, either express or implied, about the Services, Software and/or the Documentation, whether  imposed by statute or by operation of law or otherwise, 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.

13.3 Nothing in this Agreement excludes the liability of HALO: (i) for death or personal injury caused by HALO's negligence; or (ii) for fraud or fraudulent misrepresentation. 

13.4 Subject to Clauses 13.2 and 13.3, HALO's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by the Customer for the User Subscription to HALO in the twelve (12) months immediately preceding the date on which the claim arose provided always that HALO shall not in any circumstances be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or loss of anticipated savings, or loss of use 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.

13.5 To the fullest extent permitted by the law, HALO shall not be liable for any costs, expenses and/or damages (whether direct, indirect or consequential and whether economic or other) arising from the Authorised Users’ access and/or use of the Services, Hardware, Documentation and/or the API (including the third party application).

13.6 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) HALO shall have no liability otherwise than pursuant to the express provisions of this Agreement. 

13.7 Each provision of this Clause 13 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable and shall remain in force notwithstanding the termination of this Agreement, howsoever arising.

 

14. TERM AND TERMINATION

14.1 This Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless: (i) either party notifies the other party of termination, in writing, at least 30 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 (as applicable); or (ii) otherwise terminated in accordance with the provisions of this Agreement, and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party (each a “Terminating Party”) may terminate this Agreement immediately upon written notice to the other party and without liability to the other (a “Defaulting Party”) if:  (i) the Defaulting Party commits a material breach of its obligations under this Agreement and, where such breach is (in the opinion of the Terminating Party) capable of remedy, fails to remedy that breach within 30 business days of having been given notice by the Terminating Party to remedy that breach; or (ii) the Defaulting Party is, or is deemed unable to pay its debts as they fall due or to be insolvent, or admits inability to pay its debts as they fall due; or the Defaulting Party suspends making payments on all or any class of its debts or announces an intention to do so, or a moratorium is declared in respect of any of its indebtedness; or (iii) any step (including the making of any proposal, the convening of any meeting, the passing of any resolution, the presenting of any petition or the making of any order) is taken with a view to a composition, assignment or arrangement with any creditors of, or the winding up, liquidation or dissolution of, the Defaulting Party; or any liquidator, provisional liquidator, receiver or examiner is appointed to or in respect of the Defaulting Party or any of its assets.

14.3 HALO shall have the right, without prejudice to any other rights or remedies to which it may be entitled, to terminate this Agreement immediately upon written notice to the Customer where the Customer disputes the ownership or validity of HALO’s Intellectual Property Rights in and to the Services, Software, Hardware and/or Documentation.

14.4 HALO shall have the right, without prejudice to any other rights or remedies to which it may be entitled, to terminate this agreement or customer’s use of API immediately upon written notice to the customer where halo (i) determines, in its sole discretion, that providing the API is prohibited by law or has become impractical or unfeasible for any commercial, legal or regulatory reason, or (ii) where a third party application provider discontinues for whatever reason halo’s access to its application with which the API interfaces.

14.5 On termination of this Agreement for any reason: (i) all licences granted under this Agreement shall terminate with effect from the Termination Date; (ii) the Customer shall, on request from HALO, return the Hardware to HALO. If the Customer fails to do so within fourteen (14) days of such request, then HALO may at its option, charge the Customer a sum equivalent to the replacement cost of the relevant Hardware as described in Schedule 2 or, at the Customer’s expense, enter the Customer's premises and take possession of them. Until the Hardware has been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose; (iii) each party shall return and make no further use of any Hardware, Documentation and other items (and all copies of them), which includes but is not limited to Confidential Information (other than Customer Data), belonging to the other party; (iv) the Customer’s right to receive the Services shall cease automatically and no refunds (whether pro rata or otherwise) of any amount will be payable to the Customer and the Customer agrees that it and any Authorised Users shall make no further use of the Services, Hardware and/or Documentation; (v) the Customer shall remove and backup all Customer Data within 10 business days of the Termination Date; (vi) HALO shall be entitled to destroy or otherwise dispose of any of the Customer Data in its possession after the tenth (10) business day following the Termination Date; and (vii) all amounts due from the Customer under this Agreement shall be payable immediately by the Customer.

14.6 The provisions of this Clause 14 and Clauses 21 (interpretation), 4 (customer data), 11 (confidentiality), 12 (indemnity), 13 (limitation of liability), 17 (governing law and jurisdiction), 19 (communications) and, to the extent applicable 20 (general) shall survive the termination this Agreement however it arises, and shall continue to bind the parties or the relevant party (as applicable) without limit in time. 

14.7 Termination of this Agreement shall not affect any rights of the parties accrued up to the Termination Date.

 

15. SUSPENSION OF SERVICES

15.1 Without prejudice to any other right that HALO may have it may suspend the Services or any part thereof upon written notice to the Customer where: (i) HALO becomes aware of a claim that the Services, Software Documentation and/or APPI (including any third party application) infringes on any third party rights or occurs in violation of applicable laws or regulations or the restrictions on use set out in Clause 1 of this Agreement; or (ii) HALO detects that any method or device is being used to circumvent the normal security measures implemented in connection with access and use of the Services; or (iii) if there is a suspected, threatened or actual attack on either Party’s applications and/or platforms used to provide the Services; or (iv) if any event occurs for which HALO reasonably believes that suspension of the Services is necessary to protect the Services or to prevent third party access to the Services.

 

16. FORCE MAJEURE

16.1 HALO shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by any Force Majeure Event, provided that the Customer is notified of such an event and its expected duration.

 

17. GOVERNING LAW AND JURISDICTION

17.1 This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.

17.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to hear, determine and settle any dispute arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

18. PUBLICITY

18.1 The Customer agrees that from the Effective Date, and for so long as the Customer remains a Customer of HALO, HALO is entitled to publicly announce (including using the Customer as a reference Customer) the fact that the Parties have entered into this Agreement for the provision of the Services in order to assist HALO with its promotion, publicity, marketing or advertising activities. Any other publicity, announcements and/or press releases about or in relation to this Agreement or any of the provisions set out in this Agreement will require the prior written consent of the Customer which shall not be unreasonably withheld or delayed.

18.2 Subject to Clause 18.1, the Customer consents to HALO using its Intellectual Property Rights solely for the purpose of fulfilling its obligations under Clause 18.1.

 

19. COMMUNICATIONS

19.1 Notices and other communications under or in connection with this Agreement shall be given in writing by hand, by airmail, registered courier or by e-mail, save that service of any notice of any claim, dispute, termination, breach or legal proceedings in connection with this Agreement shall not be made by e-mail. Any such notice, if so given, shall be deemed to have been served: (i) if sent by hand, when delivered; (ii) if sent by airmail or registered courier, three (3) business days after despatch; and (iii) if sent by e-mail, six (6) hours after sending provided the sender has not received notice of failed or delayed delivery.

19.2 The address, telephone number, facsimile number and email address of each party for the purpose of the giving of notices under this Agreement shall be that set forth in Schedule 1 in relation to each party (or such other address or number or email address (if any) as has, for the time being, most recently been stipulated by the addressee concerned in a notice to the other party given in accordance with this Clause).

 

20. GENERAL

20.1 If the whole or any part of a provision of this Agreement is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect the legality, validity or enforceability under the law of that jurisdiction of the remainder of the provision in question or any other provision of this Agreement and the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.

20.2 The Customer shall not, without the written consent of HALO: (i) assign, transfer (whether voluntarily or involuntarily, by operation of law or otherwise) or create or permit to exist any right, title or interest (including, without limitation, any security interest and any beneficial interest under any trust) in, to or under, any of its rights under this Agreement; or (ii) purport to transfer, sub-contract or delegate any of its obligations under this Agreement.  HALO may transfer, subcontract or delegate any and all of its obligations under this Agreement.

20.3 Each party shall (at its own cost) do and execute, or arrange for the doing and executing of, each necessary act, document and thing as may be reasonably requested of it by any other party to implement this Agreement. 

20.4 The parties recognise that printed form purchase orders, invoices and other commonly used form documents relating to the performance of any obligations hereunder may contain terms which conflict with one or more terms of this Agreement.  In case of any such conflict, the relevant terms of this Agreement shall prevail. 

20.5 Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture, or the relationship of principal and agent, between the parties, and neither party shall have any right or authority to act on behalf of the other or to bind the other in any way.

20.6 This Agreement is made only in the English language. If there is any conflict in meaning between the English language version of this Agreement and any version or translation of this Agreement in any other language, the English language version shall prevail.  Each document and communication referred to in this Agreement or to be delivered under it shall be in the English language or, if not, accompanied by an English translation of it, certified as accurate by an officer of the party issuing that document or communication; and in the case of conflict between the English language version and any other version, the English language version shall prevail.

20.7 This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

20.8 The express terms of this Agreement constitute the sole and entire agreement between the parties in relation to the provision of the Services and supersedes all prior written and oral arrangements, understandings, representations, warranties and agreements between them in that regard (if any).  Each party acknowledges that it is not relying, and will not seek to rely, on any arrangement, understanding, representation, warranty, agreement, term or condition which is not expressly set out in this Agreement.

20.9 Each of the rights of each party under this Agreement may be exercised as often as is necessary, is cumulative and not exclusive of any other rights which that party may have under this Agreement, law or otherwise; and may be waived only in writing and specifically.  Delay by a party in exercising, or the non-exercise by a party of, any such right shall not constitute a waiver of that right.

20.10 HALO may, in its absolute discretion, amend these terms and conditions or the agreement at any time. such amendments shall be effective from the date upon which they are posted on HALO’s website accessible at the following address [T's&C's]. if, in HALO’s opinion, any of the amendments proposed are material, HALO shall notify the customer of such material proposed amendments by displaying a notice to that effect within the services or by email at least 14 days prior to the effective date of such material proposed amendments. if the customer or any of the authorised users continue to access or use the services after the effective date of the amendments, the customer shall be deemed to have accepted the amended agreement.

20.11 HALO may, in its absolute discretion, amend the data processing addendum at any time. such amended data processing addendum shall be effective from the data upon which it is posted on HALO’s website accessible at the following address [DPA]. if, in HALO’s opinion, any of the amendments proposed are material, halo shall notify the customer of such material proposed amendments by displaying a notice to that effect within the services or by email at least 14 days prior to the effective date of such material proposed amendments. if the customer or any of the authorised users continue to access or use the services after the effective date of the amendments, the customer shall be deemed to have accepted the amended data processing addendum.

 

21. INTERPRETATION. 

21.1 In this Agreement: 

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition by the Customer or any member of its Group of any interest in any of the assets of any person, or any interest in any business, division or undertaking of any person or any shares in any person, (ii) the acquisition by the Customer or any member of its Group of Control of any person, or (iii) the acquisition by the Customer or any member of its Group of another person by a merger, consolidation, amalgamation or any other combination with such person;

“Affiliate” means in relation to a person, any other person which Controls, is Controlled by or is under common Control with that first person;

“Aggregated Data” means data submitted to, collected by, or generated by HALO in connection with the Customer’s use of the Services, but only in aggregate, de-identified form.

“API” means an application programming interface which may be used by the Customer to interface with third party applications;

“Authorised Users” means those employees, agents, clients and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation;

“Confidential Information” means in relation to a party’s obligations under this Agreement, non-public information that is proprietary or confidential to the other party and is either clearly labelled as such or identified as Confidential Information in Clauses 11.6 (HALO confidential information) or 11.7 (Customer Data);

“Control” means possession of the power to direct or cause the direction of the management and policies of a person whether by membership, ownership, contract or otherwise and “Controlled”, “Controls” and other cognate words and expressions shall be construed accordingly;

“Control Event” means (a) a direct or indirect change of Control of the Customer or any parent company of the Customer, and (b) the entry by the Customer into an Acquisition; 

“Customer Data” means all data inputted by the Customer or Authorised Users in the course of the Customer’s use of the Services;

“Data Protection Acts” means the Data Protection Acts 1988-2018 of Ireland, as amended, revised, modified or replaced from time to time;

“Data Protection Law” means all legislation and regulations relating to the protection of Personal Data in force during the Subscription Term  including (without limitation) UK GDPR, the Data Protection Acts (as amended, revised, modified or replaced from time to time), the GDPR, all national legislation and regulatory requirements in force from time to time which apply to a Party and all other statutory instruments, industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commission of Ireland or by any relevant supervisory authority relating to the processing of personal data or privacy or any amendments and re-enactments thereof;

“Documentation” means all documents, materials, system user guides or other documentation and manuals made available to the Customer by HALO online or by other means notified by HALO to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;

“Effective Date” means the date specified as such in Schedule 1 to the Master Services Agreement;

“Fair Usage Limit” means (i) the maximum amount of data the Customer may store on the HALO Platform, or (ii) the maximum data usage by the Customer while using the Sim Cards; as further specified in Schedule 1;

“Fees” means the aggregate of (i) the fees payable by the Customer to HALO for the User Subscription, and (ii) the fees payable by the Customer to HALO for the use of the Hardware during the Subscription Term, as set out in Schedule 2 to the Master Services Agreement and adjusted in accordance with the terms of this Agreement from time to time;

“Force Majeure Event” means acts, events, omissions, circumstances or accidents beyond HALO’s reasonable control, including, without limitation, third party strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, failure of any web hosting service used by HALO in connection with the Services, act of God, war, riot, any outbreak of disease (including but not limited to any epidemic or pandemic), civil commotion, malicious damage, compliance with any law or any order, rule, regulation, direction or recommendation of any government or of any public authority, office or body, accident, breakdown of plant or machinery, fire, flood, storm and any Relevant Third Party Failure

“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);

“Group” means, in relation to any person, that person and its Affiliates;

“Hardware” means the equipment listed in Schedule 1 (including the Sim Cards, if applicable) and provided to the Customer by HALO for the duration of the Subscription Term as part of the Services;

“Holding Company” has the meaning given to it in Section 8 of the Companies Act 2014;

“Initial Subscription Term” means the initial term of this Agreement as set out in Schedule 1;

“Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all and other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;

“Loss” means any demand, claim, proceeding, suit, judgment, loss, liability, cost, expense, fee, penalty or fine;

“Normal Business Hours” means 9.00am to 5.00pm GMT;

“Relevant Charges” means each of: (i) the Fees, and (ii) the excess storage fees payable pursuant to Clause 3.5;

“Relevant Third Party” means any provider, supplier or sub-contractor;

“Relevant Third Party Failure” means any failure by any Relevant Third Party engaged by HALO to perform or any delay in the performance of any such Relevant Third Party which is caused by a “Force Majeure Event” (as if references in the definition of that term to HALO were references to such Relevant Third Party) affecting such Relevant Third Party or by any act, event, omission, or accident which is a force majeure event (or equivalent) for the purposes of any contract between HALO and such Relevant Third Party or which otherwise relieves such Relevant Third Party of liability under any such contract for any failure or delay on the part of that Relevant Third Party;

“HALO Platform” means the web-based platform licensed by HALO to the Customer as part of the Services;

“Renewal Period” means the period described in Clause 14.1;

“Services” means the Software provided by HALO via the HALO Platform to the Customer under the Master Services Agreement, as more particularly described in the Documentation;

“Sim Cards” mean the equipment listed as such in Schedule 1 and provided to the Customer by HALO for the duration of the Subscription Term;

“Software” means the online software application provided by HALO as part of the Services and listed in Schedule 1 to the Master Services Agreement;

“Subscription Term” has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods);

“Termination Date” means:(i) where the Agreement is terminated or otherwise expires pursuant to Clause 15.1 and unless otherwise agreed in writing, the date of expiry of the Initial Subscription Term or Renewal Period (as the case may be); and (ii) where the Agreement is terminated pursuant to Clauses 14.2 or 14.3, the date of notice of termination;

“UK GDPR” means, in respect of the United Kingdom, the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419;

“User Subscription” means the user subscription purchased by the Customer pursuant to this Agreement which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement; and

“Virus” means 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.

21.2 In this Agreement, unless the contrary intention is stated, a reference to: (i) the singular shall include the plural and vice versa; (ii) a person shall be construed as a reference to any individual, firm or company, corporation, governmental entity or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing; (iii) a person includes that person’s legal personal representatives, successors and permitted assigns; (iv) time shall be construed by reference to whatever time may from time to time be in force in Ireland; (v) any agreement document or instrument is to the same as amended, novated, modified, supplemented or replaced from time to time; (vi) ‘this Agreement’ mean the Clauses of, and the Schedules to the Master Services Agreement (including these Terms and Conditions, Schedule 1 (service specification) to the Master Services Agreement, Schedule 2 (pricing) to the Master Services Agreement and the Data Processing Addendum and related annexes), all of which shall be read as one document; (vii) a Clause or other provision is a reference to a Clause or provision of this Agreement, and any reference to a sub provision is, unless otherwise stated, a reference to a sub provision of the provision in which the reference appears; (viii) ‘including’ means comprising, but not by way of limitation to any class, list or category; (ix) a law includes any provision of any constitution, statute, statutory instrument, order, by-law, directive, regulation or decision of any governmental entity and any judicial or administrative interpretation of any of the foregoing, in each case, as amended, revised, modified or replaced from time to time; (x) any Irish legal or accounting term for any action, remedy, method of judicial proceeding, insolvency proceeding, event of incapacity, legal or accounting document, legal or accounting status, court, governmental or administrative authority or agency, accounting body, official or any legal or accounting concept practice or principle or thing shall in respect of any jurisdiction other than Ireland be deemed to include what most approximates in that jurisdiction to the Irish legal or accounting term concerned; (xi) ‘writing’ shall include a reference to any electronic mode of representing or reproducing words in visible form; and (xii) ‘business day’ shall be construed as a reference to a day (other than a Saturday or Sunday) on which the banks are generally open for business in Ireland.

21.3 If any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of this Agreement.

21.4 Where any obligation in this Agreement is expressed to be undertaken or assumed by any party, that obligation is to be construed as requiring the party concerned to exercise all rights and powers of control over the affairs of any other person which it is able to exercise (whether directly or indirectly) in order to secure performance of that obligation by each such person as if that person were bound by that obligation.

21.5 Headings and captions are to be ignored in the construction of this Agreement.