KlarityTerms & Conditions
Master Terms and Conditions
All contracts that the Provider; Nordcloud Oy, Business (Identity Code 2827588-2) may enter into from time to time for the provision and term for use of the Hosted Services, including KLARITY App:s and Related Services are governed by these Master Terms and Conditions and all use of the Hosted Services is subject to the Customer’s acceptance of these Master Terms and Conditions.
KLARITY provides transparency, visibility, cost management, analysis and automation of public cloud resources. The platform functionality can be extended with KLARITY App:s.
Except to the extent expressly provided otherwise, in these Master Terms and Conditions:
|“Account”||means an account enabling a person to access and use the|
Hosted Services, including both administrator accounts and
|“Agreement”||means a contract made under the Service Order Form and|
these Master Terms and Conditions between the Provider and
the Customer, and any accompanying Terms and Conditions for
one or more of the KLARITY Apps the Customer has chosen to
|“Applicable Law”||means the laws specified in Section 6 of the Service Order|
|“Business Day”||means any weekday other than a bank or public holiday in|
|“Business Hours”||means the hours of 09:00 to 17:00 CEST on a Business Day;|
|“Charges”||means the following amounts:|
(a) the amounts specified in Section 3 of the Service
(b) such amounts as may be agreed in writing by the
parties from time to time; and
(c) amounts calculated by multiplying the Provider’s
standard time-based charging rates (as set out in
Section 3.3 of the Service Order Form) by the time
spent by the Provider’s personnel performing the
Support Services (rounded down by the Provider to
the nearest quarter hour);
|“Customer”||means the company or legal entity identified as such under “parties” in the Service Order form;|
(a) Any information disclosed by either of the Parties
during the Term (whether disclosed in writing, orally
or otherwise) that at the time of disclosure:
I. was marked as “confidential”; or
II. should have been reasonably understood by
the disclosing Party to be confidential; and
(b) the Customer Data;
|“Customer Data”||means all data, works and materials: uploaded to or stored on|
the Platform by the Customer; transmitted by the Platform at
the instigation of the Customer; supplied by the Customer to
the Provider for uploading to, transmission by or storage on
the Platform; or generated by the Platform as a result of the
use of the Hosted Services by the Customer;
|“Customer Personal Data”||means any Personal Data (if relevant) that is processed by the|
Provider on behalf of the Customer in relation to the
Agreement, but excluding personal data with respect to which
the Provider is a data controller – provided however that is the
understanding of the parties that no Customer Personal Data
under the Agreement shall be transferred to or in any other
way be processed by the Provider;
|“Data Protection Laws”||means all applicable EU/Finnish regulations relating to the|
processing of Personal Data (where relevant) including, while it
is in force and applicable to Customer Personal Data, the
General Data Protection Regulation “GDPR” (Regulation (EU)
|“Effective Date”||means the date upon which the Provider sends to the Customer|
an order confirmation following the Customer completing,
accepting and submitting the Services Order Form published by
the Provider on the Provider’s website;
|“Force Majeure Event”||means an event, or a series of related events, that is outside|
the reasonable control of the party affected including failures of
the internet or any public telecommunications network, hacker
attacks, denial of service attacks, virus or other malicious
software attacks or infections, power failures, pandemics,
industrial disputes affecting any third party, changes to the
law, disasters, explosions, fires, floods, riots, terrorist attacks
and wars, including such events affecting a subcontractor of a
|“Hosted Services”||means the KLARITY service (including the KLARITY Apps to the|
extend such apps has been opt-in by the Customer) as set out
in Section 2 of the Service Order Form, which will be made
available by the Provider to the Customer as a cloud service via
the internet in accordance with the Agreement, these Master
Terms and Conditions and the accompanying Terms and
Conditions for each of the KLARITY Apps.
|“Intellectual Property Rights”||means all intellectual property rights wherever in the world,|
whether registrable or unregistrable, registered or
unregistered, including any application or right of application
for such rights and these “intellectual property rights” include
copyright and related rights, database rights, confidential
information, trade secrets, know-how, business names, trade
names, trademarks, service marks, passing off rights, unfair
competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs and
|“KLARITY Apps”||means such KLARITY Apps that from time to time shall be|
developed by KLARITY and made available and offered to the
Customer subject to the conclusion of a separate Service Order
Forms and the Customer acceptance of specific terms and
conditions for each such app.
|“Minimum Term”||means, in respect of the Agreement, the agreed minimum|
contract term as set out in Section 1.2 of the Service Order
form commencing on the Service deployment date;
|“Notice”||means a written notice in the form and format as defined in|
|“Personal Data”||has the meaning given in the EU Data Protection Laws|
applicable from time to time – provided however that is the
understanding of the parties that no Personal Data under the
Agreement shall be transferred to or in any other way be
processed by the Provider;
|“Platform”||means the KLARITY platform managed by the Provider and|
used by the Provider to provide the Hosted Services, including
all integrated services under the Platform such as – but not
limited to the KLARITY Apps, the application and database
software for the Hosted Services, the system and server
software used to provide the Hosted Services, and the
hardware on which that application, database, system and
server software is installed or integrate with;
|“Provider”||means the entity identified as such under “parties” in the|
Service Order form;
|“Services”||means any services that the Provider provides to the Customer,|
or has an obligation to provide to the Customer, under the
Agreement, these Master Terms and Conditions or the KLARITY
Apps Terms and Conditions;
|“Service Description”||means the commercial service description for the Hosted|
Services and Related Services prepared by the Provider and
delivered or made available by the Provider to the Customer;
|“Service Deployment Date”||means the date of deployment of the Hosted Services as|
agreed in Section 1.1. of the Service Order Form.
|“Service Order Form”||means the Service Order Form signed or otherwise agreed by|
or on behalf of each party or an online order form published by
the Provider and completed, accepted and submitted by the
Customer, in each case incorporating these Master Terms and
Conditions by reference;
|“Set Up Services”||means the configuration, implementation and integration of the|
Hosted Services as set out in Section 2 of the Service Order
|“Support Services”||means support in relation to the use of, and the identification|
and resolution of errors in, the Hosted Services as set out in
Section 2 of the Service Order Form, but shall not include the
provision of training services unless agreed otherwise in the
Service Order Form;
|“Supported Web Browser”||means the current release from time to time of Microsoft Edge,|
Mozilla Firefox, Google Chrome or Apple Safari, or any other
web browser that the Provider agrees in writing in the Service
Order Form shall be supported;
|“Term”||means the term of the Agreement, commencing in accordance|
with Section 1.1 of the Service Order Form and ending in in
accordance with Section 17 of the Master Term and Conditions
|“Terms and Conditions”||means all the documentation containing the provisions of the|
Agreement, namely the Service Order Form, These Master
Terms and Conditions and the Schedules (Acceptable Use
Policy), including any amendments to that documentation from
time to time and the Terms and Conditions for each of the
KLARITY Apps which the Customer opt-in on;
2.1 The Agreement shall come into force upon the Effective Date, as stated in the Service Order.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Section 17.
2.3 Unless the parties expressly agree otherwise in writing, each Service Order Form shall create a separate contract under these Master Terms and Conditions.
3. Set Up Services
3.1 The Provider shall provide the Set Up Services to the Customer.
3.2 The Provider shall use all reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in Section 1 and 2 of the Service Order Form.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and the Provider shall not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Master Terms and Conditions.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services and/or the Hosted Services and/or Customer upgrades shall be the exclusive property of the Provider.
4. Hosted Services
4.1 The Platform will generate an Account for the Customer no later than on the Service Deployment Date and will provide to the Customer login details for such Account.
4.2 The Provider hereby grants to the Customer a limited, non-exclusive, non-transferable and revocable license to access and use the Hosted Services during the Term by means of a Supported Web Browser for the KLARITY Platform and such KLARITY Apps as the Customer has chosen to opt-in as set out in the Service Order Form in accordance with the Service Descriptions.
4.3 The licence granted by the Provider to the Customer under Section 4.2 is subject to the following limitations:
(a) the Usage Limitations as set out in Section 2.4 of the Service Order Form
(b) ; and
(c) the Hosted Services must not be used at any point in time to benefit a higher number of tenants than the number covered by the Service Fee as set out in Section 3.2 of the Service Order Form, providing that the Customer may add or remove included tenants if the number of tenants change, subject to an increase or decrease in the Service Fee, accordingly.
4.4 Except to the extent expressly permitted in these Master Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Section 4.2 is subject to the following prohibitions:
(a) the Customer must not transfer or sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Master Terms and Conditions and the Service Description;
(e) the Customer must not conduct or request that any other person, company or
other entity, conduct any load testing or penetration testing on the Platform or
Hosted Services without the prior written consent of the Provider.
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
4.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 1 (Acceptable Use Policy).
4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosted Services and Platform, either during or after the Term.
4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 10 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Support Services
5.1 The Provider shall provide the Support Services to the Customer during the Term subject to this Section 5.
5.2 The Provider shall only make available to the Customer such Support Service as agreed and specified in Section 2 of the Service Order Form.
5.3 The Provider shall provide the Support Services with reasonable skill and care.
5.4 The Customer may use the agreed Support Services for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
5.5 The Provider shall (where applicable) respond within the timeframe as agreed in Section 2 of the Service Order Form on requests of Support Services made by the
5.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 10 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. Customer Data
6.1 The Customer hereby grants to the Provider a non-exclusive, unlimited, irrevocable, royalty-free, worldwide and perpetual licence to use and copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent
reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement, hereunder to further develop the Hosted Services and algorithms of the Provider. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
6.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person or company, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law when used by the Provider in accordance with the Agreement.
7. Platform integrated services
7.1 The parties acknowledge and agree that the use of all integrated services in the Platform including but not limited to the the KLARITY Apps, the parties’ respective rights and obligations in relation to such integrated services and any liabilities of either party arising out of the use of such integrated services shall be subject to these Master Terms and Conditions, and accordingly these Master Terms and Conditions shall govern any such use, rights, obligations or liabilities. The Customer acknowledges that in in addition to these Master Terms and Conditions specific Terms and Conditions apply for each of the KLARITY Apps.
8. No assignment of Intellectual Property Rights
8.1 Nothing in these Master Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer or from the Customer to the Provider.
9.1 The Customer shall pay the Charges to the Provider in accordance with these Master Terms and Conditions and as set out in the Service Order Form.
9.2 Should any new features be added to the Service based on Customer’s order, the Service Fees are adjusted accordingly.
9.3 All amounts stated in or in relation to these Master Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable Value Added Taxes, or other applicable Sales Tax, levies, duties or charges imposed by governmental authorities, which will be added to those amounts and payable by the Customer to the Provider.
9.4 During the Minimum Term no change in the Charges can be implemented by the Provider. After the expiry of the Minimum Term the Provider may change any element of the Charges by up to 5% on an annual basis subject to giving to the Customer not less than 30 days’ prior written notice of the variation.
10.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate as set out in the Service Order Form.
10.2 The Customer must pay the Charges by bank transfer using such payment details as are notified by the Provider to the Customer from time to time.
10.3 If the Customer does not pay any amount properly due to the Provider under these Master Terms and Conditions, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate as set out in the Section 3.4 of the Service Order Form (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or 7
(b) claim interest and statutory compensation from the Customer pursuant to
11. The Parties confidentiality obligations
11.1 The Parties must:
(a) keep each other’s Confidential Information strictly confidential;
(b) not disclose each other’s Party’s Confidential Information to any person or company without the party’s prior written consent;
(c) use the same degree of care to protect the confidentiality of the other party’s Confidential Information as for its on confidential information of a similar nature, being at least a reasonable degree of care;
11.2 Notwithstanding Section 11.1, the Parties may disclose each other’s Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the Confidential Information. Each party shall be fully liable for any direct and documented damage caused by its officers, employees, professional advisers, insurers, agents and subcontractors by disclosing any Confidential Information.
11.3 This Section 11 imposes no obligations with respect to Confidential Information that:
(a) is known to the Party before disclosure under these Master Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the disclosing Party;
(c) is obtained from a third party in circumstances where the Party has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4 The restrictions in this Section 11 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock on any recognized stock exchange.
11.5 The provisions of this Section 11 shall continue in force indefinitely following the termination of the Agreement.
12. Data protection
12.1 It is the mutual understanding of the Parties that no Personal Data governed or regulated by the Data Protection Laws will be exchanged or processed under the Agreement and therefore no Data Processing Agreement is concluded between the Parties. If Customer Personal Data nevertheless is exchanges or processed under the Agreement each party shall comply with the Data Protection Laws with respect to the processing of such Customer Personal Data, subject to Section 12.
12.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
12.3 Subject to prior written notification by the Customer to the Provider, the Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement and (to the extend necessary) subject to the conclusion of a Data Processing Agreement, non-sensitive Personal Data of the following types: email-addresses; and the Provider shall only process the Customer Personal Data for the following purposes: the Hosted Services under the Agreement.
12.4 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Section 12.
12.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer 8 Personal Data to any place outside the European Economic Area), as set out in these Master Terms and Conditions or any other document agreed by the parties in writing.
12.6 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
12.7 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
12.8 The Provider shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.9 The Provider and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data, including the measures specified in the information security policy of the Provider (as it may be updated by the Provider from time to time).
12.10 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorization of the Customer. In the case of a general written authorization, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days’ written notice to the Provider, providing that such notice must be given within the period of 7 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Section 12.
12.11 If Customer Personal Data is supplied by the Customer to the Provider under Section
12.3, the Provider is hereby authorized by the Customer to engage, as sub-processors with respect to such Customer Personal Data, including through such third parties as informed by the Provider to the Customer.
12.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
12.13 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Section 12.13.
12.14 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 24 hours after the Provider becomes aware of the breach.
12.15 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Section 12 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Section 12.15.
12.16 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law
requires storage of the relevant Personal Data.
12.17 The Provider shall (subject to prior signed non-disclosure agreement) allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Section
12. The Provider may charge the Customer at its standard time-based charging rates 9 for any work performed by the Provider at the request of the Customer pursuant to this Section 12.17.
12.18 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavors promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
13.1 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Master Terms and Conditions.
13.2 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Master Terms and Conditions. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14. Acknowledgements and warranty limitations
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Master Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Master Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the ServiceDescriptions (from time to time); and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
14.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under the Agreement and these Master Terms and Conditions or in relation to the Hosted Services.
15. Limitations and exclusions of liability
15.1 The limitations and exclusions of liability set out in this Section 15 and elsewhere in these Master Terms and Conditions govern all liabilities of the Provider arising under the Agreement and these Master Terms and Conditions, the Service Order Form, the KLARITY Apps Terms and Conditions, or relating to the subject matter of these Master Terms and Conditions and the Service Order Form and the KLARITY Apps Terms and Conditions, including liabilities arising in contract, due to delays, defects, product liability, and for breach of statutory duty, except to the extent expressly provided otherwise in these Master Terms and Conditions.
15.2 The Provider shall not be liable in respect of any losses arising out of a Force Majeure Event.
15.3 The Provider shall not be liable towards the Costumer, its affiliates, employees, agents, contractors, officers or directors, in respect of any incidental, special, indirect or consequential loss or damage, whatsoever including, without limitation any loss of profits, loss of revenue, loss of income, loss of or anticipated savings, business interruption, any loss of production, loss of business, or other commercial or economical loss, loss of goodwill, loss of damage to reputation, loss of contracts or customers, loss of opportunities, loss of corruption of any data, data program, database or software or any other commercial damages or losses, whether direct or indirect, arising or relating to the Agreement, regardless of the theory of liability (Contract, tort or otherwise.)
15.4 The Provider shall not be liable for any loss or damage, resulting from errors, changes or breakdowns in services provide by third-parties, third-party operating systems or third-party software. 10
15.5 The Provider shall not be liable for any loss or damage (including due to delay in the performance of the Providers obligations), resulting from delay or errors in the Customer performing its obligations under the Agreement.
15.6 On all areas and concerning all types of claims, damages, penalties, cost, fines and liabilities (in any form whatsoever – “Claim”) including such Claims based on series of related events, and which is not subject to other limitations of liability in the Master Terms and Condition, the Provider’s total aggregated liability is limited to the payment, which the Customer has paid in cash for the Provider’s services and deliveries during the preceding six (6) months prior to the act that gave rise to the liability. Notwithstanding the foregoing, the maximum aggregated liability of the Provider under the Agreement pursuant to Section 15.6 concerning all Claims cannot exceed EUR 75,000.00 (“The Max Liability Cap”).
15.7 If the Provider fails to deliver the agreed services on time, the Customer is entitled to liquidate damages starting 48 hours following the date on which delivery should have taken place. The liquidated damages amount to 1 / 365 of the agreed annual fee per commenced day of delay. In order to receive any liquidated damages under this Section 15.7, Customer must notify Provider within 24 hours from the time Customer becomes eligible to receive Liquidated Damages. If Customer does not comply with these requirements, Customer will forfeit its right to receive liquidated damages. The liquidated damages due to delay is subject to the combined aggregated Max Liability Cap in Section 15.6.
15.8 The limitations of liability does not apply on liability resulting from wilful misconduct, gross negligence and fraud and fraudulent misrepresentation.
16. Force Majeure Event
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event that gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) Promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event
17.1 Each party may terminate the Agreement by giving not less than sixty (60) days’ written notice of termination, expiring at the end of a calendar month – however at the earliest and the end of the Minimum Term. If the Agreement has not been terminated within 60 days prior to the end of the Minimum Term, the Agreement shall automatically be renewed and be prolonged for an additional period of one (1) year (the “Additional Term”) subject to the payment terms already agreed in Section 3 of the Service Order Form. The same notice of termination and automatically renewal terms shall apply on all Additional Terms.
17.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is not remediable;
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.11
17.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is under a procedure ending with its termination without a legal successor;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the business or assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement)
17.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and
(b) the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Section 17.4.
18. Effects of termination
18.1 Upon the termination of the Agreement, the provisions of these Master Terms and Conditions (and where applicable the KLARITY Apps Terms and Conditions) shall cease to have effect, except of such provisions of these Master Terms and Conditions which by their nature should survive termination, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
18.2 Upon the termination of the Agreement, the Customer shall cease to have access to the Hosted Services and the Platform. For the avoidance of doubt if the Customer only terminates part of the licensed Services, all other non-terminated Services shall continue subject to the Agreement, these Master Terms and Conditions (and where applicable the KLARITY Apps Terms and Conditions).
18.3 Within 30 days following the termination of the Agreement for any reason and the receipt of the Provider’s respective invoice:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties’ other legal rights.
19.1 Any notice from one party to the other party under the Agreement, these Master Terms and Conditions (and where applicable the KLARITY Apps Terms and Conditions) must be given by one of the following methods:
(a) sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient’s email server; or 12
(b) sent using the contractual notice mechanism incorporated into the Hosted Services, in which case the notice shall be deemed to be received upon dispatch, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.1 Subject to any express restrictions elsewhere in the Agreement and these Master Terms and Conditions (and where applicable the KLARITY Apps Terms and Conditions), the Provider may subcontract any of its obligations under the Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
21.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
21.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
21.3 The Provider may vary the Agreement by giving to the Customer at least sixty (60) days’ written notice of the variation, cf. however Section 9.3 concerning change on Charges. Subject to this, the Agreement may only be varied by a written document signed by or on behalf of each of the parties.
21.4 The Customer hereby agrees that the Provider may assign the Provider’s contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer’s contractual rights or obligations under the Agreement.
21.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
21.6 Subject to Section 17.1 (limitation of liability), a Services Order Form, together with these Master Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
21.7 The Provider shall have the right to use Customer’s name and logos for its marketing purposes, provided however a beforehand written information to Customer about its intended marketing use. Customer shall have the right to forbid such intended marketing use by providing written notice to the Provider made before such intended marketing use. Customer however accepts that Provider can use the Customer ́s name and logos in the context of the fact that the Customer is a customer of the Provider.
22.1 In these Master Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision. 13
22.2 The Section headings do not affect the interpretation of these Master Terms and Conditions.
22.3 References in these Master Terms and Conditions to “calendar months” are to the 12 named periods January, February and so on into which a year is divided.
22.4 In these Master Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.