Legal

Hypervine™ Services Agreement with you "the Customer"

The Agreement is between HYPERVINE LIMITED, a company incorporated in Scotland (No. SC596608) and having its Registered Office is at C/O Lindsays, 100 Queen Street, Glasgow, United Kingdom, G1 3DN ("Hypervine") and you, (the Customer).

If the Customer does not agree to be bound by these Terms and Conditions (Terms and Conditions), the Customer cannot order or use any Subscription Services or any Professional Services. The Customer must be at least 18 years old to order Subscription Services. The person entering into the Agreement on behalf of the Customer warrants that he/she/they has/have the authority of the Customer to enter into the Agreement on the Customer's behalf.

Hypervine's issue of an Order Form to the Customer constitutes a contractual offer and the Customer's signing/acceptance of the Agreement and acceptance/signing of an Order Form will conclude the contract between Hypervine and the Customer relating to the Subscription Services and Professional Services listed in the Order Form. All Order Forms will be deemed to be subject to and include these Terms and Conditions.

The contract ("Agreement") between the Customer and Hypervine will comprise:

If there is any conflict between the terms of an Order Form and these Terms and Conditions, then the terms of the Order Form will prevail.

The elements of the Agreement will have precedence as follows:

PART ONE – SUBSCRIPTION SERVICES

Grant of Licence

Hypervine grants to the Customer a non-exclusive, royalty based (i.e. the fees specified in the Order Form), non-sublicensable, term licence to Use the Subscription Services for the Customer's internal business purposes for the Subscription Term, subject to the following conditions:

Conditions of Use

The Subscription Services provided to the Customer are non-exclusive, non-transferable and are for the Customer's internal business use only. The Customer's right to use the Subscription Services is subject to the following conditions:

User Content/Security

Users provide all data for use in the Subscription Services, and Hypervine is not obliged to modify or add to User Content except as specified in Clause 4. The Customer is solely responsible for User Content and the accuracy of User Content.

User Content belongs to Users or their licensors, and Hypervine makes no claim to any right of ownership in User Content except as specifically provided herein.

Hypervine shall keep User Content confidential in accordance with Clause 16 of the Terms and Conditions.

Subject to the terms of Clauses 4 and 23, Hypervine shall only be entitled to use User Content strictly as necessary to carry out its obligations under the Agreement, and for no other purpose. However, Hypervine:

Hypervine shall, in providing the Subscription Services, comply with the Privacy Legislation and in accordance with its Privacy Policy and Clauses 21 and 22 of the Terms and Conditions. For the purposes of the Legislation (except in the case of Data Sharing in terms of Clause 22), Hypervine will be a Data Processor and the Customer will be the Data Controller of User Content. This clause is in addition to, and does not relieve, remove or replace, Hypervine's obligations or rights under the Privacy Legislation.

Sharing of login/account details is not permitted unless expressly authorised in writing by Hypervine. Users must keep login/account details confidential and Users should not reveal their username or password to any unauthorised third parties. Hypervine accepts no liability for any losses or damages incurred as a result of account details being shared in breach of the terms of the Agreement. It is recommended that Users do not save login/account details in their internet browser.

Passwords must be robust and difficult to break.

Industry Best Practice security recommendations should be implemented at all times, such as (a) maintaining a recognised Cyber Essentials Certification IT systems such as https://www.cyberessentials.ncsc.gov.uk; (b) Always implementing strong, robust, difficult to break passwords, that are changed on a regular basis; (c) that Users do not save login/account details in their internet browser; and (d) implementing two factor authentication at each endpoint.

Whereas as part of the Subscription Services, Hypervine may host email accounts or other online communications infrastructure or subscription accounts (including the Hypervine subscription itself) for Users, Hypervine accepts no responsibility and shall not be liable for third parties accessing such email, online communications accounts or subscription accounts by way of breaking or hacking passwords. It is the responsibility of Users to ensure that all email, online communications accounts and subscription accounts are properly protected with robust passwords. The terms of Clause 4 apply to the use of any such email, online communications accounts and subscription accounts.

Acceptable Usage Policy

Without prejudice to the generality of Clause 2.7, when using the Subscription Services; Users should do so in accordance with the following rules:

Hypervine does not screen or pre-approve any User Site or User Content (although Users acknowledge that Hypervine may do so if it wishes).

Hypervine may edit a User Site to comply with the provisions of sub-Clause 4.1 without prior consultation. In cases of severe breaches of the provisions of sub-Clause 4.1, a User Site may be taken down and the relevant account may be suspended or terminated. The Customer will not be informed in writing of the reasons for such alterations or take downs.

Hypervine accepts no responsibility or liability for any infringement of third-party rights by User Sites.

Hypervine will not be liable in any way or under any circumstances for any loss or damage that any User may incur as a result of such User Sites, or Hypervine exercising its rights under the Agreement, nor for any errors or omissions in User Sites. Use of and reliance upon User Sites is entirely at the Customer's own risk.

The Customer acknowledges that Hypervine may retain copies of any and all communications, information, User Content and User Sites sent to Hypervine.

Users must comply with the terms of the Privacy Legislation at all times.

Users who are the Customer's employees and consultants and other third parties must enter into the EULA.

Intellectual Property

Subject to the exceptions in Clause 6 of the Terms and Conditions, all Content, that is not User Content, and the Database and the Software and the Documentation are the property of Hypervine, or Hypervine's Affiliates or licensors. By continuing to use the Subscription Services the Customer acknowledges that such material is protected by applicable United Kingdom and international Intellectual Property and other laws.

The Customer may print, reproduce, copy, distribute, store or in any other fashion re-use Content from the Subscription Services for personal or educational purposes only unless otherwise given Hypervine's express written permission to do so. Specifically, the Customer agrees that it will not systematically copy Content from the Subscription Services with a view to creating or compiling any form of comprehensive collection, compilation, directory or database unless given Hypervine's express written permission to do so.

In the event that new inventions, designs or processes evolve in performance of or as a result of the Agreement, the Customer acknowledges that the same shall be the property of Hypervine unless otherwise agreed in writing by Hypervine.

Any trade mark, trade name or logo such as "Powered by Hypervine" appearing on or in the Software is the property of Hypervine and must not be copied, obscured or removed from the Software.

User Site Intellectual Property

The Intellectual Property rights subsisting in the User Content of User Sites belong to the User to which that/those User Site(s) pertain unless it is expressly stated otherwise in the Agreement.

Where expressly indicated, certain Content available through User Sites and the Intellectual Property rights subsisting therein belongs to third parties.

The third party Content described in this Clause 6, unless expressly stated to be so, is not covered by any permission granted by Clause 5 of the Terms and Conditions to use Content.

For the avoidance of doubt, the Database (excluding the User Content therein) shall not be considered User Content.

Third Party Intellectual Property

Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, copyright and trademarks, in Content belong to the manufacturers or distributors of such Content as may be applicable.

Subject to Clause 5 the Customer may not reproduce, copy, distribute, store or in any other fashion re-use Content unless otherwise indicated on the Subscription Services or the Documentation or unless given express written permission to do so by the relevant manufacturer or supplier.

Subscription Services Warranties

Hypervine warrants that: (i) the Subscription Services will function substantially as described in the Documentation; and (ii) Hypervine owns or otherwise has the right to provide the Subscription Services to the Customer under the Agreement. The remedies set out in this Clause 8 are the Customer's exclusive remedies for breach of either warranty.

If the Subscription Services do not function substantially in accordance with the Documentation, Hypervine shall, at its option, either (i) modify the Subscription Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet the Customer's requirements. If neither of these options are commercially feasible, either party may terminate the relevant Order Form under the Agreement, in which case Hypervine shall refund to the Customer all fees pre-paid to Hypervine under the relevant Order Form for unused Subscription Services.

If the normal operation, possession or use of the Subscription Services by the Customer is found to infringe any third party Intellectual Property right or Hypervine believes that this is likely, Hypervine shall, at its option, either (i) obtain a license from such third party for the benefit of the Customer; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options are commercially feasible, terminate the relevant Order Form under the Agreement, in which case Hypervine shall refund to the Customer all fees pre-paid to Hypervine under the relevant Order Form for unused Subscription Services. However, Hypervine has no warranty obligations for:

Professional Services Warranties

Hypervine warrants that (i) the Professional Services shall substantially conform to the applicable Order Form; and (ii) the Professional Services shall be performed with reasonable skill and care. The remedies set out in this Clause 9 are the Customer's exclusive remedies for breach of either warranty. If the Professional Services do not conform to the Order Form or are not performed with reasonable skill and care, Hypervine shall re-perform the Professional Services to the extent necessary to correct the defective performance.

Hypervine shall comply with the terms of the SLA (or as amended in an Order Form) at all times. The terms of Clause 9.1 shall apply to the SLA.

The Customer's Responsibilities

The Customer shall provide Hypervine with all information, access, and full good faith cooperation reasonably necessary to enable Hypervine to deliver the Professional Services and shall do anything that is identified in the Order Form as the Customer's responsibility. If the Customer fails to do this, Hypervine shall be relieved of its obligations to the extent that the obligations are dependent upon the Customer's performance.

Term of Agreement

The Agreement starts on the date that both parties sign an Order Form for the relevant services and ends when Hypervine no longer is obliged to provide the Customer with Subscription Services or Professional Services under any Order Form.

Payments

The Customer shall pay the fees listed in, and in accordance with, the relevant Order Form.

If the Customer initially purchases Subscription Services for a term, and subsequently orders an additional product, the purchase price for the additional product shall be pro-rated so that the added subscriptions terminate on the same day as the initial Subscription Term (unless specified otherwise in the relevant Order Form). The fees for the Initial Subscription Term (stated in the first Order Form) will be as specified in the first Order Form. Hypervine reserves the right to change fees from time to time and any such changes may affect the Customer's recurring fees after the Initial Subscription Term. Increases in price will be reflected in the Customer's recurring fees for the Services.

Termination and Suspension

Either party may terminate rights granted to the other under a particular Order Form at any time after expiry of the Subscription Term and provided all outstanding fees have been paid to the party providing the services by providing 30 days' prior written notice to the other party. Either party may terminate the Agreement, or any rights granted under a particular Order Form with immediate effect if:

Sections 2.4, 2.5, 3.3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24 and 25 shall continue after the Agreement ends.

If Hypervine terminates an Order Form under the Agreement because of non-payment by the Customer, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment. Upon termination of the Agreement or any Order Form for any reason: (except in the case of termination due to the Customer's material breach of the Agreement), the Customer will be given restricted access to the Subscription Services for a period of ten days in which to recover their User Content. Hypervine can provide a User Content recovery service to the Customer, should they wish to use it. Hypervine reserves the right to charge for this service; and each party shall immediately pay to the other all of that party's unpaid invoices and interest at the rate specified in the relevant Order Form, for any services for which no invoice has been raised and any work in progress. Each party shall invoice the other and the invoice shall be payable immediately on receipt. Termination of the Agreement or any Order Form shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages (subject to the limitations contained herein) in respect of any breach of the Agreement or any Order Form that existed at or before the date of termination. Hypervine may retain User Content in backup media for an additional period of up to one year after the date of termination of the Agreement, or longer if required by law, provided it makes no further use of such User Content (except as provided for herein or as is required by law), keeps the User Content confidential in accordance with Clause 16, and supplies the Customer with a copy of the most recent back-up of the User Content within 30 days of the Customer's request (at the Customer's cost).

Warranty Disclaimer

Except as expressly provided in the Agreement, the Subscription Services, Software and Professional Services are provided with no other warranties of any kind, and Hypervine disclaims all other warranties, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose. Hypervine does not warrant that the use of the Subscription Services shall be uninterrupted or error-free.

Limitation of Liability

Neither party shall be liable under the Agreement for any indirect, special, incidental, punitive or consequential damages (including without limitation damages for loss of goodwill, work stoppage, computer failure or malfunction, lost or corrupted data, lost profits, lost business or lost opportunity), or any other similar damages under any theory of liability (whether in contract, tort/delict, strict liability or any other theory), even if the other party has been informed of this possibility. The Customer assumes all responsibility for the selection of the Subscription Services, Software and Documentation necessary to achieve the Customer's intended results, and for the use and results of the Subscription Services or work product. Each party's total liability for any direct loss, cost, claim or damages of any kind related to the Agreement or the relevant Order Form shall not exceed the amount of the fees paid or payable by the relevant party under such relevant Order Form during the period of 12 months before the event giving rise to such loss, cost, claim or damages. However, there is no limitation on direct loss, claim or damages arising as a result of an infringement of either party's Intellectual Property rights by the other party, or a breach of Clause 16 or Clauses 21 and 22 of the Agreement by the other party.

Hypervine's liability under the Agreement (except where provided otherwise in the Agreement to a lesser extent) shall be limited to the amount of professional indemnity insurance underwritten in the name of Hypervine which shall be £1,000,000. This limitation shall not apply to a breach of Clauses 21 or 22.

Confidentiality

Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement and any Order Form. A party's Confidential Information shall not be deemed to include information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the "Receiver"), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver's records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. Subject to clause16.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party (other than to a consultant or a Sub-contractor for the purposes of the Agreement and which consultant or Sub-contractor shall have entered into undertakings of confidentiality in relation to the Confidential Information on terms no less onerous than those contained in this Clause 16), or use the other's Confidential Information for any purpose other than to carry out its obligations under the Agreement. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of a competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. This clause 16 shall survive termination of the Agreement or any Order Form, howsoever arising.

Indemnification by Hypervine

Hypervine shall indemnify and hold harmless the Customer its clients, its Affiliates, directors and employees from any damages finally awarded against the Customer (including, without limitation, reasonable costs and legal fees incurred by the Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services or Documentation by the Customer (other than User Content – see Clauses 4 and 18) infringes the Intellectual Property of any third party, ("Legal Action"). Hypervine shall provide reasonable assistance in the defence of such Legal Action.

However, Hypervine shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services and/or Software with software or products not supplied, or approved in writing by Hypervine; (ii) any repair, adjustment, modification or alteration to the Subscription Services by the Customer or any third party, unless approved in writing by Hypervine; or (iii) any refusal by the Customer to install and use a non-infringing version of the Subscription Services offered by Hypervine under Clause 8.2(ii). Clause 8.2(ii) and this Clause 17 state the entire liability of Hypervine with respect to any Intellectual Property infringement by the Subscription Services or Software or Documentation.

The Customer shall give written notice to Hypervine of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and shall give copies to Hypervine of all communications, notices and/or other actions relating to the Legal Action. The Customer shall give Hypervine the sole control of the defence of any Legal Action, shall act in accordance with the reasonable instructions of Hypervine and shall give Hypervine such assistance as Hypervine reasonably requests to defend or settle such claim. Hypervine shall conduct its defence at all times in a manner that is not adverse to the Customer's interests. The Customer may employ its own counsel to assist it with respect to any such claim. The Customer shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Hypervine or its counsel, or because Hypervine fails to assume control of the defence. The Customer shall not settle or compromise any Legal Action without Hypervine's express written consent. Hypervine shall be relieved of its indemnification obligation under Clause 17 if the Customer materially fails to comply with Clause 17.3.

Indemnification by the Customer

The Customer shall indemnify and hold harmless Hypervine, its Affiliates, directors, and employees from any damages finally awarded against Hypervine (including, without limitation, reasonable costs and legal fees incurred by Hypervine) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the User Content, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the User Content ("Legal Claim").

Hypervine shall give written notice to the Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim and shall give copies to the Customer of all communications, notices and/or other actions relating to the Legal Claim. Hypervine shall give the Customer the sole control of the defence of any Legal Claim, shall act in accordance with the reasonable instructions of the Customer and shall give the Customer such assistance as the Customer reasonably requests to defend or settle such claim. The Customer shall conduct its defence at all times in a manner which is not adverse to Hypervine's interests. Hypervine may employ its own counsel to assist it with respect to any such claim. Hypervine shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with the Customer or its counsel, or because the Customer fails to assume control of the defence. Hypervine shall not settle or compromise any Legal Claim without the Customer's express written consent. The Customer shall be relieved of its indemnification obligation under Clause 18 if Hypervine materially fails to comply with Clause 18.2.

Publicity

Hypervine may list the Customer as a customer and use the Customer's logo on Hypervine's website, on publicly available Customer lists, and in media releases with the Customer's consent, such consent not to be unreasonably withheld.

Miscellaneous

The Agreement represents the entire express agreement of the parties, and supersedes any prior or current agreements or understandings, whether written or oral. If there is a conflict between the Agreement and an Order Form, the Order Form shall prevail.

The Agreement may not be changed or any part waived except by written agreement between the parties.

The Agreement shall be governed by the laws of Scotland. The parties consent to the exercise of exclusive jurisdiction of the Scottish courts.

Neither party shall assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of the other party.

The language of the Agreement shall be English.

The time zone of the Agreement shall be Greenwich Mean Time.

Data Processing

Both parties will comply with all applicable requirements of the Privacy Legislation. This Clause 21 is in addition to, and does not relieve, remove or replace a party's obligations or rights under the Privacy Legislation.

The provisions of the Agreement shall apply to the processing of the Personal Data carried out for the Customer by Hypervine, and to all Personal Data held by Hypervine in relation to all such processing whether such Personal Data is held at the date of the Agreement or received afterwards.

The Agreement shall continue in full force and effect for so long as Hypervine is processing Personal Data on behalf of the Customer.

Hypervine is only to process the Personal Data received from the Customer:

Schedule 1 sets out the scope, nature and purpose of processing by Hypervine, the duration of processing and the types of Personal Data and categories of data subject.

All instructions given by the Customer to Hypervine shall be made in writing and shall at all times be in compliance with the Privacy Legislation and other applicable laws. Hypervine shall act only on such written instructions from the Customer unless Hypervine is required by law to do otherwise (as per Article 29 of the UK GDPR).

Hypervine shall promptly assist the Customer (where the Customer cannot do this itself via the Subscription Services) in complying with a legitimate data subject request to amend, transfer, delete, or otherwise dispose of Personal Data. Where permitted to do so by law, Hypervine may charge a reasonable fee for providing such assistance.

Both Parties shall comply at all times with the Privacy Legislation and other applicable laws and shall not perform their obligations under the Agreement or any other agreement or arrangement between themselves in such way as to cause either party to breach any of its applicable obligations under the Privacy Legislation.

The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the Privacy Legislation in all respects including, but not limited to, its collection, holding, and processing.

Hypervine agrees to comply with any reasonable measures required by the Customer to ensure that its obligations under the Agreement are satisfactorily performed in accordance with any and all applicable legislation from time to time in force (including, but not limited to, the UK GDPR) and any best practice guidance issued by the ICO.

Hypervine shall provide all reasonable assistance (at the Customer's cost) to the Customer in complying with its obligations under the Privacy Legislation with respect to the security of processing, the notification of Personal Data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.

When processing the Personal Data on behalf of the Customer, Hypervine shall: