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BENEFITS TERMS OF SERVICE
iCOM WORKS LIMITED AND/OR ITS AFFILIATES (“TERRYBERRY”) IS WILLING TO GRANT ACCESS TO THE SERVICES TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SERVICES (REFERENCED BELOW AS “CUSTOMER” OR “YOU”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. CUSTOMER AND TERRYBERRY MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SIGNING UP FOR OR USING THE SERVICES.
THESE TERMS OF SERVICES (“AGREEMENT”) CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND TERRYBERRY. THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR OTHERWISE INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SERVICES, CUSTOMER (A) ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTAND THIS AGREEMENT, AND (B) ACCEPTS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, PLEASE SELECT THE “I DECLINE” BUTTON BELOW AND DO NOT OTHERWISE INDICATE CONSENT ELECTRONICALLY. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1.1. Access and Use. Subject to payment of all applicable fees set forth in the Order and the terms and conditions of this Agreement, Terryberry grants Customer, during the Subscription Term, a revocable, non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the Services solely for Customer’s and its Affiliates’ internal business purposes in accordance with this Agreement and in the quantity specified in the applicable Order.
1.2. Access and Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or its related systems or networks, or perform unauthorized penetrating testing on the Services; (viii) use the Services to store or transfer defamatory, trade libelous or otherwise unlawful data; (ix) exceed the subscribed quantities, Authorized Users or other entitlement measures of the SaaS Products as set forth in the applicable Order or (x) except as otherwise agreed by the Parties, store in or process with the Services any personal health data, credit card data, personal financial data or other such sensitive regulated data.
1.3. Use Verification. During the term of this Agreement, Terryberry will have the right, at its own expense, to monitor the use of the Services for purposes of measuring and reporting on usage, and Customer will respond to any reasonable inquiries from Terryberry to assess the actual scope of Customer’s use of the Services.
1.4. Services Updates. Customer acknowledges that Terryberry reserves the right at any time, or from time to time, with or without notice, to update, change or remove the content, functionality, or Authorized User interface of the Services at Terryberry’s sole discretion.
1.5. Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
2.1. Terryberry Order Acceptance. Customer shall pay for the services set forth in the Order (“Services”) and will receive a written acknowledgement from Terryberry.
2.2. Account Activation. Terryberry will activate the Services upon receipt of payment.
3.1. Fees. Customer shall pay all invoices as set forth in any applicable Order without deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by Terryberry. If the Order does not set forth payment terms, Customer shall pay Terryberry all invoices within thirty (30) days of the invoice date. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all fees are non-refundable and payable in advance. Terryberry may invoice for purchases of Services upon delivery.
3.2. Renewal Uplifts. The license fees for any Services may be modified by Terryberry in its sole discretion prior to any renewal of the Services beyond the Initial Term as set forth in the Order.
3.3. Increase in Customer Employee Headcount. For the avoidance of doubt, in the event that the number of persons employed by the Customer increases, or the Services are in any way varied, the fees set forth in an applicable Order shall increase accordingly.
3.4. Taxes. Customer is liable for any sales tax, use tax, Services tax, value added tax, transfer tax, excise tax, tariff, duty or any other similar tax imposed by any governmental authority arising from the fees or charges invoiced to Customer under this Agreement. Such taxes may be invoiced by Terryberry to Customer for all taxing jurisdictions where Terryberry is permitted or required by Applicable Law to collect such taxes unless Customer provides a valid resale certificate or other documentation required under Applicable Law to evidence tax exemption.
3.5. Late Payment. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 ½ %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less.
3.6. Collection Fees. If Customer fails to make payment after the due date, notwithstanding the Terryberry’s right to charge interest under Section 3.5 and all other rights under this Agreement, Terryberry shall be entitled to add to the outstanding sum owed by Customer to all costs and expenses incurred by Terryberry in connection with recovering such fees (including, but not limited to, any third party legal fees or collection firm fees incurred in the pursuit of payment) Customer agrees that they shall be liable for such sums.
4.1. Term. This Agreement shall be in effect from the Effective Date and shall continue until the end of the term set forth in the Order (the “Initial Term”), through successive renewal terms of this Agreement (each a “Renewal Term” and, collectively with the Initial Term, the “Term”), until terminated in accordance with the provisions set forth in this Agreement. If no term is set forth in the Order, the Initial Term shall be twelve (12) months.
4.2. Termination by Either Party. Either Party may immediately terminate this Agreement by giving written notice to the other Party, if:
4.2.1. the other Party materially breaches any obligations under this Agreement and fails to cure such breach within thirty (30) days after the non-breaching Party demands such cure;
4.2.2. the other Party becomes insolvent or assigns all, or substantially all, of its assets or business for the benefit of creditors;
4.2.3. the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
4.2.4. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company);
4.2.5. the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
4.2.6. a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
4.2.7. a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
4.2.8. any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(i) (inclusive); or
4.2.9. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4.2.10. the other Party commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business; or
4.2.11. the other Party resolves to wind up business, dissolve, or liquidate.
4.3. Termination for Breach of Law. A Party may terminate this Agreement, in whole or in part, or cease provision of Services or terminate Customer’s access to the applicable Services if required to comply with Applicable Law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party.
4.4. Termination by Terryberry. Terryberry may immediately terminate this Agreement by giving written notice to Customer if:
4.4.1. Customer assigns its rights or obligations in violation of the terms of this Agreement; or
4.4.2. Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
4.5. Effect of Termination. Upon termination or expiration of this Agreement:
4.5.1. Customer shall immediately cease using Services and shall have no further right to access or use the applicable Services;
4.5.2. Terryberry’s obligation to provide access to the Services shall terminate immediately;
4.5.3. each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party;
4.5.4. upon request, each Party shall certify in writing to the other Party that it has returned or destroyed such Confidential Information;
4.5.5. any accrued rights and obligations will survive; and
4.5.6. Customer shall immediately pay all fees and charges then outstanding or otherwise incurred as of the date of termination or expiration.
4.6. Suspension.
4.6.1. Suspension Generally. Terryberry may, on written notice, suspend access to the Services without liability if: (i) Terryberry reasonably believes that the Services is being used in violation of this Agreement; (ii) Customer does not cooperate with reasonable investigation by Terryberry of any suspected violation of this Agreement; (iii) the Services or Customer Data are accessed or manipulated by a third party without consent of either Party; (iv) Terryberry is required by Law to suspend access to the Services; (v) if any invoiced amounts remain unpaid by Customer for more than ten (10) calendar days past the due date; or (vi) there is another event for which Terryberry reasonably believes that the suspension of access to the Services is necessary to protect the cloud environment in which Customer’s instance of the Services is deployed.
4.6.2. Suspension for Non-Payment or Material Breach. Terryberry reserves the right to suspend any applicable Services or Customer’s access to the applicable Services upon 30 days’ written notice to Customer if: (a) an invoice is more than sixty (60) days past due; or (b) if there is an uncured material breach of this Agreement.
4.6.3. Login ID Refusal. Terryberry reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Terryberry will promptly inform Customer in writing of such refusal or cancellation.
4.6.4. Excessive Traffic. In addition to the rights set forth in this Agreement, Terryberry may suspend Customer’s access and use of the Services if there is an unusual and material spike or increase in Customer’s use of the Services and Terryberry reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services.
4.6.5. Notice. Terryberry will provide notice prior to any suspension if permitted by applicable law or unless Terryberry reasonably believes that providing such notice poses a risk to the security of the Services.
4.6.6. Reinstatement. Terryberry will promptly reinstate Customer’s access to and use of the Services once the issue has been resolved, provided that if Terryberry already terminated the Agreement for uncured material breach in accordance with the Agreement, Terryberry shall not be obligated to reinstate Customer’s access to and use of the Services.
5.1. Authorized User Accounts. Each Authorized User that accesses the Services must be issued a separate Authorized User account (with a unique ID and password) by Terryberry and/or Customer (“Authorized User Accounts”). Customer shall ensure that passwords associated with the Authorized User Accounts remain confidential and secure and to not allow multiple Authorized Users to utilize the same Authorized User Account. Customer shall not provide, or provide access to, a Authorized User Account to any third party without prior written consent of Terryberry. If any Authorized User becomes no longer authorized by Customer to have such access to the Services, then Customer shall immediately notify Terryberry.
5.2. Authorized Users. Customer is responsible for Authorized Users’ compliance with this Agreement and for access to Customer Data (defined below) or the Services by other persons as a result of Customer’s failure to use reasonable precautions to secure its own systems or credentials for access to the Services. Customer will: (i) use its best efforts to prevent unauthorized access to or use of the Services and notify Terryberry immediately of any such unauthorized access or use; (ii) cooperate with any reasonable investigation by Terryberry of any outage, security problem or suspected breach of this Agreement; and (iii) comply with all Terryberry instructions relating to Customer’s access to or use of the Services, including instructions specifying specific windows of time for certain types of Customer Data uploading. Customer shall be responsible for: (a) all acts that occur in connection with its Authorized Users’ Services accounts; (b) assuring that its employees receive adequate disclosures of the terms and conditions governing such its employees’ use of Terryberry Services; and (c) all transmissions initiated by Authorized Users during use of Terryberry Services. Customer will cause all Authorized Users to comply at all times with the terms and conditions set forth herein and any standard terms and conditions applicable to the use of the Services that may be made available to Authorized Users from time to time. Customer is responsible and liable for any breach by any Authorized User of any obligation, representation or warranty of Customer in this Agreement or any standard terms and conditions applicable to the use of the Services.
5.3. Customer Cooperation. Customer shall cooperate with Terryberry in all matters relating to the Services.
5.4. Customer Personnel. Customer shall designate Customer personnel reasonably qualified by experience and expertise to interface with Terryberry personnel and to participate in and perform Customer’s obligations hereunder. Customer and its personnel shall, to the extent reasonably practicable, cooperate with Terryberry’s reasonable requests for assistance and information in order to facilitate the provision of Terryberry Services in accordance with this Agreement.
5.5. Customer System. Customer, at its sole cost and expense, shall be responsible to purchase or otherwise obtain the computer systems, devices, telecommunications network, gateway and internet access equipment and services necessary for Customer to access the Services (“Customer System”). Customer is responsible for all maintenance and required upgrades of Customer System.
5.6. Customer Data. Customer is responsible for providing, in a timely manner, all data and information, including Customer Data, and assistance that Terryberry requires to provide Terryberry Services. All data, including Customer Data, provided to Terryberry shall be delivered in the agreed format as required in the Order. Customer shall ensure that all provided data and information, including Customer Data, is true, complete and not misleading. Customer acknowledges that the ability of Terryberry to provide Terryberry Services in accordance with this Agreement, including the agreed pricing and delivery models, are contingent upon the accuracy and completeness of information and data provided by Customer and all Customer Data, as well as Customer’s cooperation and timely performance of their obligations.
6.1. Customer Data Content. As between Terryberry and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the Services; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with Terryberry (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
6.2. Data Protection Laws. The Parties shall comply with their respective obligations under the Applicable Data Protection Laws. In particular, if Customer is established in the European Economic Area (“EEA”), in the United Kingdom (“UK”) or in California, or will, in connection with the Services, provide Terryberry with personal data relating to an individual located within the EEA, the UK or California, the Parties shall comply with the terms and conditions of the Terryberry Data Processing Addendum made available to Customer upon request and incorporated herein by reference (the “DPA”).
6.3. Security of Customer Data. Terryberry shall: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Terryberry shall not materially diminish its security controls with respect to Customer Data during a particular Services term.
7.1. Disclosure of Confidential Information. The Parties acknowledge that each Party (the “Disclosing Party”) may disclose Confidential Information to the other Party (“Receiving Party”).
7.2. Exclusions. Notwithstanding anything to the contrary in this Section 7, Confidential Information shall not include information which: (i) was already known to Receiving Party at the time of disclosure by Disclosing Party, and Receiving Party was under no obligation of confidentiality with respect to such information; (ii) is becomes known (independently of disclosure by the Disclosing Party) to Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of Receiving Party has become, generally available to the public; or (iv) is independently developed by the Receiving Party without use of, access to, or reliance upon the Disclosing Party’s Confidential Information, and the Receiving Party can provide evidence to that effect.
7.3. Obligations. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party, except as permitted in Section 7.4. The Receiving Party will protect and keep confidential the Disclosing Party’s Confidential Information using the same degree of care that the Receiving Party uses to protect its own nonpublic or proprietary business, technical or financial information of similar importance, but in no event less than a reasonable degree of care. The Receiving Party will not use the Disclosing Party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement. The disclosure of Confidential Information pursuant to this Agreement is not intended in any way to transfer or grant any right, title or interest in or to such Confidential Information to the Receiving Party unless otherwise expressly indicated in this Agreement or by the Disclosing Party in writing.
7.4. Permitted Disclosure. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to those of its officers, directors, employees, agents, representatives and contractors (“Representatives”) who have a legitimate need to know such Confidential Information consistent with the purposes of this Agreement and who have agreed, either as a condition of employment, representation or in a written agreement, to be bound by terms and conditions substantially as protective as the confidentiality terms and conditions applicable to the Receiving Party under this Section 7. The Receiving Party shall be responsible and liable for any breach by its Representatives of the obligations of the Receiving Party set forth in this Section 7. The Receiving Party shall be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, to the extent it is legally permitted to do so, the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party at the Disclosing Party’s reasonable request and expense in any lawful action to contest or limit the scope of such required disclosure. This Section 7 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof.
8.1. Confidential Information. Each Party acknowledges that the Confidential Information (defined below) of the other Party, and all other intellectual property rights of the other Party, are and shall remain the exclusive property of the other Party, whether or not protected under Applicable Laws, including intellectual or property laws.
8.2. Terryberry Intellectual Property. Except for the rights granted to Customer in this Agreement, all rights, title, and interest in and to the Services and Terryberry Intellectual Property are hereby reserved by Terryberry, its Affiliates, or its licensors. To the extent that Customer gains any Intellectual Property rights in the Services or Terryberry Intellectual Property by any means or mechanism, Customer hereby irrevocably assigns to Terryberry all of its right, title and interest in and to such Services, Intellectual Property, and Intellectual Property rights. To the extent Customer’s rights are inalienable under Applicable Law, Customer hereby irrevocably waives such rights and, if such waiver is deemed invalid, grants to Terryberry the exclusive, irrevocable, perpetual, worldwide, royalty free right to use, market, modify and grant licenses to such items without identifying Customer or seeking Customer’s consent. Customer agrees not to take any action that interferes with intellectual proprietary rights of Terryberry. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from Terryberry to the Customer.
8.3. Customer Intellectual Property. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from Customer to Terryberry.
8.4. Customer Data. Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant Terryberry any rights in Customer Data beyond those expressly provided herein. Customer grants Terryberry and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the Services.
8.5. Usage Data. Terryberry shall be permitted to collect and use Usage Data for its reasonable business purposes and for Customer’s benefit. In the event Terryberry wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be anonymized and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way Terryberry’s confidentiality obligations in Section 7 of the Agreement.
8.6. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Terryberry by mail, email, telephone, or otherwise, suggesting or recommending changes to Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback“), Terryberry is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Terryberry on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Terryberry is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Terryberry is not required to use any Feedback.
8.7. Domain.
8.7.1. Terryberry Obligations. Terryberry shall acquire, at their own cost, the Domain for the exclusive benefit of the Customer. Upon the expiration of then-current Subscription Term, Terryberry shall take all reasonable steps to formally assign the Domain to the Customer provided that the Customer first: (i) satisfies its obligations with respect to the effects of termination or expiration of the Agreement in accordance with Section 4.5, and (ii) pays to Terryberry sufficient funds for the purposes of Terryberry paying all Nominet UK’s costs in relation to such assignment.
8.7.2. Customer Obligations. Customer hereby grants to Terryberry a fully-paid up, non-exclusive, non-transferable, royalty-free license to use the Domain for the duration of the Term in connection with the Services. Customer shall notify Terryberry immediately if it receives any notice that the use of the Customer Marks or any other Customer Data is infringing any rights, including any Intellectual Property rights, of any third party.
8.8. Trademark. Customer will furnish Terryberry with all Customer Marks it desires to include in construction of the Site. Customer grants to Terryberry a fully-paid up, non-exclusive, non-transferable, royalty-free license to use the Customer Marks in association with the Services and all purposes contemplated under this Agreement.
9.1. Mutual Warranties. Each Party hereby represents and warrants to the other Party as follows: (i) such Party is an entity duly formed, organized and existing in good standing in such Party’s state of formation; (ii) such Party has full power and all requisite legal and entity authority to enter into this Agreement; and (iii) such Party’s execution, delivery, and performance of this Agreement shall not constitute (a) a violation of any judgment, order, or decree; (b) a material default under any material contract by which such Party or any of its material assets are bound; or (c) an event that would, with notice or lapse of time, or both, constitute such a default.
9.2. Representations and Warranties by Customer.
9.2.1. Customer Data Warranties. Customer represents and warrants to Terryberry that Customer owns and will at all times own, or otherwise has and will at all times have, all necessary rights, licenses, permissions and consents in and relating to the data provided or made available by or on behalf of Customer so that, as used, disclosed, hosted, stored and/or processed by Terryberry in accordance with the terms of this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any right of any third party or violate any Applicable Law.
9.2.2. Customer Marks Warranty. Customer further represents and warrants to Terryberry that the receipt and use by Terryberry of the Customer Marks and any other material provided by the Customer to Terryberry in the performance of this Agreement, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party.
9.2.3. Data Security Warranty. Without derogating from Terryberry’s obligations under this Agreement, Customer warrants that it shall take and maintain appropriate steps within its control to protect the confidentiality, integrity, and security of its Confidential Information and Customer Data, including: (i) operating the Services in accordance with the Documentation and applicable law and; and (ii) dedicating reasonably adequate personnel and resources to implement and maintain the security controls set forth in the Documentation. Customer will be responsible for the acts and omissions of its Authorized Users.
9.3. Limited Services Warranty. During the applicable Subscription Term, Terryberry warrants that: (a) the Services will perform in substantial conformity with the Agreement; and (b) Terryberry will use industry standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the Services. The foregoing warranties are void if the failure of the Services has resulted from negligence, error, or misuse of the Services (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than Terryberry. Customer shall be required to report any breach of warranty to Terryberry within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. Terryberry’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties will be for Terryberry, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if Terryberry fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, Terryberry shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected Services.
9.4. Third Party Materials. Customer acknowledges and agrees that Terryberry may provide, disclose, resell, make available or facilitate the access to materials, content, works of authorship, data, software, software tools, products, goods, services and Documentation that are not proprietary to Terryberry or that are licensed, leased, acquired or otherwise obtained by Terryberry or any of its Affiliates from a third party (collectively, “Third-Party Materials”). Customer, as applicable, will be responsible for complying with the terms of any licenses and terms and conditions related to Customer’s access, use or disclosure of Third-Party Materials. Notwithstanding anything to the contrary in this agreement or elsewhere, Third-Party Materials are provided “as-is” and “as available,” and Terryberry hereby disclaims all representations and warranties in connection with Third-Party Materials, including, without limitation, warranties of merchantability, fitness for a particular purpose, noninfringement, title and compliance with law. Customer hereby forever releases Terryberry from any and all claims and liabilities relating to or arising from Third-Party Materials.
9.5. Compliance with Law. Each Party shall comply with all Applicable Laws and regulations in connection with the performance of its obligations and the exercise of its rights under the Agreement.
9.6. Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period mentioned in this Agreement. Other than as expressly set forth in this Agreement, To the maximum extent allowed by Applicable Law, Terryberry disclaims (and disclaims on behalf of its licensors) all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise. Without limiting the foregoing, any implied warranty of merchantability, implied warranty against infringement, and implied warranty of fitness for a particular purpose are hereby expressly excluded and disclaimed by Terryberry to the maximum extent allowed by Applicable Law.
10.1. Terryberry Indemnification. Terryberry will indemnify and defend Customer, its Affiliates, and its and their respective directors, officers, employees, agents, successors and permitted assigns from and against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the Services in accordance with this Agreement and applicable Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
10.2. Customer Indemnification. Customer will indemnify and defend Terryberry, its Affiliates, and its and their respective directors, officers, employees, agents, successors and permitted assigns from and against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from: (i) an actual or alleged infringement or violation by the Customer Data of such third-party’s patent, copyright, trademark, trade secret; (ii) Terryberry’s use of the Customer Data, in accordance with the terms of this Agreement and (where applicable) with the terms of a DPA, violates Applicable Law, (iii) the content or structure of Customer Data; (iv) Customer’s gross negligence, fraud or willful misconduct, (v) Customer’s violation of the licensing terms for any Services, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees); or (vi) actual or alleged infringement of a third party’s Intellectual Property rights, arising out of, or in connection with, the receipt or use in the performance of the Master Agreement of the Customer Marks.
10.3. Procedure. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the Party entitled to indemnification under this Agreement (“Indemnified Party”) giving prompt notification to the Party that is obligated to provide indemnification (“Indemnifying Party”) of any claims in writing; and (b) the Indemnified Party providing the Indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the Indemnifying Party will have no authority to enter into any settlement or admission of the Indemnified Party’s wrongdoing on behalf of the Indemnified Party without the Indemnified Party’s prior written consent (not to be unreasonably withheld). The Indemnifying Party will promptly, and in no event less than ten (10) days before the date on which a response to such claim is due, assume and diligently pursue the defense and settlement of such claim, engaging attorneys with appropriate expertise to handle and defend the same, at the Indemnifying Party’s sole cost and expense. At the Indemnifying Party’s request and sole expense, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in defending or settling any claim. If the Indemnifying Party fails to timely assume, or ceases to diligently pursue, such defense, the Indemnified Party may defend or settle the claim in such manner as it may deem appropriate at the cost of the Indemnifying Party.
10.4. Remedies. If Customer’s use of the Services is prevented by injunction or court order because of any claim subject to indemnification under Section 10.1, or, in Terryberry’s opinion, if the Services are likely to become the subject of any such claim, then Terryberry, at its sole discretion and at no additional expense to Customer, shall either: (i) procure the right for Customer to continue using the Services in accordance with the terms of this Agreement; or (ii) replace or modify the Services so that such Services become non-infringing. If Terryberry determines that neither (i) nor (ii) is available in a timely manner on commercially reasonable terms, then Terryberry may terminate Customer’s right to use the infringing Service, in which event Customer shall receive a pro-rata refund of all unused, pre-paid fees for the Services for the period following termination as calculated on a monthly basis for the affected Services. This Section 10.4 states the sole liability of Terryberry and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
10.5. Exclusions. The above Terryberry obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (i) a modification of the Services made by, or at the request or direction of, Customer; (ii) the combination of the Services with an item, technology, software, data or intellectual property not supplied by or approved in writing by Terryberry; (iii) the use of the Services in a manner not intended or allowed by this Agreement; (iv) any portion of the Services based upon specifications provided by or on behalf of Customer; (v) Third-Party Materials; or (vi) data provided or made available by or on behalf of Customer.
11.1. Liability Cap. Except for liability caused by Terryberry’s intellectual property infringement indemnification obligations in Section 10.1, Customer’s indemnity in Section 10.2, and Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to Terryberry under this Agreement during the twelve (12) month period preceding the date of initial claim. The exclusions and limitations set forth in this Section 11.1 shall apply even if an exclusive remedy of Customer under this Agreement has failed of its essential purpose.
11.2. Consequential Damages. Neither Party or its Affiliates will have any liability to the other Party, its Affiliates, or any third party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with the supply, use, or performance of, or inability to use, the Services or arising out of or in connection with this Agreement, however caused, whether in contract, tort (including negligence), indemnity, breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
11.3. Allocation of Risk. Customer and Terryberry expressly acknowledge and agree that the limitations and exclusions contained in this Section 11 have been the subject of active and complete negotiations between the Parties and represent the Parties’ agreement as to the allocation of risk between the Parties based upon the level of risk to Terryberry and Customer associated with their respective obligations under this Agreement. The Fees payable to Terryberry reflect this allocation of risk and the limitation and exclusion of damages set forth in this Section 11. The Parties acknowledge that, but for the limitations and exclusions set forth in this Section 11, the Parties would not have entered into this Agreement.
11.4. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by Applicable Law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
12.1. Purchase of Professional Services. Customer may separately purchase from Terryberry Professional Services in relation to the Services as may be generally available by Terryberry to its customers, pursuant to Terryberry’s then applicable professional services terms.
12.2. Responsibilities of the Parties.
12.2.1. Terryberry Responsibilities. Terryberry shall use reasonable endeavors to meet any performance dates or timescales specified in an Order or SOW (including the Go Live Date), but any such dates or periods shall be estimates only and time for performance by Terryberry shall not be of the essence of this Agreement.
12.2.2. Customer Responsibilities. Customer shall (i) cooperate with the Supplier in all matters relating to the Services; (ii) if requested, provide to Terryberry, its agents, subcontractors, consultants and employees in a timely manner and at no charge, access to the Customer Data; (iii) provide Terryberry with any information, literature or designs which they may require to provide the Services; and (iv) continue to grant to Terryberry the license set out in Section 8.4, 8.7.2, and 8.8.
12.3. Customer Default.
12.3.1. Customer Default. If Terryberry’s performance the Professional Services is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (Customer Default), then:
a. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
b. the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Section 12; and
c. the Client shall – if requested by the Supplier – reimburse the Supplier on written demand for any costs or losses reasonably sustained or incurred by the Supplier arising from the Client Default subject strictly to the Supplier using all reasonable endeavors to minimize or mitigate such costs and losses.
12.4. Professional Services Warranty. Terryberry warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with this Agreement; and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards. Terryberry’s ability to successfully perform hereunder is dependent upon Customer’s adherence to its obligations in Section 12.2.2. If, through no fault or delay of Customer, the Professional Services do not conform to the foregoing warranty, Customer shall provide written notice to Terryberry within thirty (30) days of Terryberry’s delivery of the Professional Services, and Terryberry shall then re-perform the non- conforming portions of the Professional Services. This Section 12.4 states the sole liability of Terryberry and the exclusive remedy of Customer with respect to any Professional Services arising out of or related to this Agreement.
12.5. Rates and Cancellation. Mutually agreed upon Professional Services performed outside of business hours, overnight, during the weekend, or on a national holiday will be charged at double the rates set forth in Terryberry’s then-applicable price list. Terryberry may invoice Customer for Professional Services days in whole day or partial day increments. If Customer cannot accept invoices for partial Professional Services days, as noted on the applicable SOW, Terryberry may invoice Customer in advance for all Professional Services herein upon receipt of an Order. Cancellation charges for Professional Services will be set forth in the applicable SOW.
12.6. Non-Solicitation of Personnel. Neither Party shall solicit, or attempt to employ or hire, in any capacity, any of the other party’s personnel assigned to provide Professional Services to a Party, or introduced to a Party in connection with the Professional Services during the period in which such services are provided and for a period of one (1) year thereafter. In the event that either Party employs or hires any of the other party’s personnel in breach of this Section 12.6, the breaching Party shall pay to the other Party upon demand as liquidated damages a sum equal to the annual salary of such personnel at the time of breach. For the avoidance of doubt this Section 12.6 shall not apply in the event that either party hires the other party’s personnel as a direct result of a previously placed commercial advertisement.
13.1. Structure. Each Order shall be deemed to incorporate by reference all of the terms and conditions of this Agreement and shall constitute a separate and binding contract between Terryberry or its Affiliate that is the signatory to the Order and Customer. An Affiliate of Terryberry may contract for Services by executing an Order. In such case, a Terryberry Affiliate shall be deemed to be “Terryberry” and a “Party” for purposes of this Agreement. In the event there are any conflicts or any inconsistencies between the terms and conditions of the Order and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern, unless the Order specifically references the conflicting or inconsistent term of this Agreement and specifically states that the conflicting or inconsistent term of the Order shall govern, then only with respect to such Order, the terms and conditions of the Order shall govern.
13.2. Construction. All references to and mentions of the word “including” or the phrase “e.g.” means “including, without limitation.” “Or” is not exclusive. The terms and conditions of this Agreement shall not be construed in favor of or against either Party by reason of the extent to which either Party or its professional advisors participated in the preparation or drafting of this Agreement.
13.3. Audit Rights. During the term of this Agreement and for twelve (12) months thereafter, Terryberry may audit Customer’s use of Services to ensure that Customer is in compliance with this Agreement upon reasonable prior written notice. Upon such notice, Customer will provide a Terryberry representative with reasonable access to all relevant records during regular business hours.
13.4. Force Majeure. Any delay in or failure of performance by either Party under this Agreement, other than a failure to pay amounts when due, shall not be considered a breach of this Agreement, and shall be excused to the extent caused by any occurrence beyond the reasonable control of such Party. Such acts shall include, but not be limited to, fortuitous events and acts of God; wars, riots, terrorism and insurrections; laws, decrees, ordinances and governmental regulations; change in Applicable Laws; strikes and lockouts; transportation stoppages or slowdowns; hurricanes, earthquakes, floods, fires and explosions; pandemics and epidemics; and shelter-in-place or similar orders. Notwithstanding the foregoing, if such act or condition beyond the reasonable control of such Party continues for a period of one hundred and eighty (180) days or more, the unaffected Party may, on notice to the Party affected, terminate this Agreement, and neither Party shall have any further obligation to the other save for those provisions hereunder which, by their terms, survive the termination or expiration of this Agreement.
13.5. Compliance with Export Controls. Customer will not export, re-export, divert, transfer, or disclose, directly or indirectly, or allow the use of, any Services in violation of any applicable export control requirements. Without limiting the generality of the immediately preceding sentence, Customer will not (i) re-export the Services to, or allow the use of the Services by an Authorized User in, an unauthorized or prohibited destination; or (ii) transfer, use or permit or authorize the use of the Services in any unauthorized end-use (i.e. activities related to the sanctioned activities).
13.6. No Third Party Beneficiaries. Except for indemnified parties in Section 10, no person or entity other than the Parties hereto, and their respective successors and/or assigns, shall have any right, remedies, obligations or liabilities under the terms of this Agreement.
13.7. Notice. Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and in English to the address set forth below, provided by one or more of the following means and deemed to have been duly given (i) if delivered personally, when received; (ii) if delivered by certified or registered mail (postage prepaid and return receipt requested), when received; (iii) if transmitted by facsimile (to those for whom a facsimile number is set forth below), on the date of receipt of the transmission confirmed by receipt of a transmittal confirmation; or (iv) if delivered by courier service, on the third business day following the date of deposit with such courier service. Either Party may change its address by giving notice as provided herein of the new address to the other Party.
To Terryberry:
iCOM Works Limited
8 Ash Tree Court, Woodsy Close, Cardiff Gate Business Park, Cardiff, CF23 8RW.
To Customer:
Notices to Customer shall be sent to the address provided on the Order.
13.8. Governing Law; Jurisdiction.
13.8.1. Generally. Each Party agrees to the governing law of England and Wales without regard to choice or conflict of law rules, and to the exclusive jurisdiction of the Courts of Cheshire, England with respect to any dispute, claim, action, suit, or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter formation.
13.8.2. Injunctive Relief. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such controversy or claim.
13.8.3. Application of Legislation. Except to the extent expressly required by Applicable Law, neither the United Nations Convention on Contracts for the International Sale of Goods 1980, nor any international and domestic legislation implementing such Convention, applies to this Agreement. The Parties’ rights and obligations under this Agreement are solely and exclusively as set forth in this Agreement and the Uniform Computer Information Transactions Act (“UCITA”), whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, does not apply to this Agreement and is hereby disclaimed. The Parties will amend this Agreement as may be necessary to comply with any mandatory disclaimer language required by UCITA in any applicable jurisdiction
13.9. Waiver of Jury Trial. To the extent not prohibited by Applicable Law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
13.10. Equitable Relief. The Parties agree that a breach of Section 7 may result in irreparable and continuing damage for which there will be no adequate remedy at law, and each Party will be entitled to seek temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.
13.11. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party. Any purported assignment, pledge, delegation or transfer in violation of this Section 13.11 is null and void.
13.12. Successors and Assigns. All provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against, the respective successors and permitted assigns of Terryberry and Customer.
13.13. Waivers; Amendments.
13.13.1. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. Subject to this Section 13.13.1, this Agreement may be amended only by a written document signed by duly authorized representatives of each Party.
13.13.2. Notwithstanding anything to the contrary herein or elsewhere, Terryberry may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Terryberry written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next renewal term following the Proposed Amendment Date (unless this Agreement is earlier terminated in accordance with its provisions). Customer’s continued use of the Services following the effective date of an amendment will confirm Customer’s consent thereto.
13.13.3. Severability. If a court of competent jurisdiction holds any provision, or part of any provision, of this Agreement to be illegal or invalid, the provision, or the affected part of such provision, shall be null and void and deemed automatically severed from this Agreement. Any such holding shall not affect the legality or validity of the remaining provisions or remaining parts or unaffected provisions of this Agreement.
13.14. Relationship of The Parties. The relationship between the Parties is that of independent contractors only, and nothing in this Agreement shall be interpreted or construed to create a partnership, joint venture, employer-employee, or agency relationship, or any other relationship between the Parties, other than that of independent contractors. Neither Party shall have the power to obligate the other Party in any manner whatsoever unless expressly provided in this Agreement.
13.15. Counterparts. The Order may be executed in counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. The exchange of a fully executed Agreement or Order (in counterparts or otherwise) by fax, .pdf, .pic, .tif, .jpg, other legible image file or by widely accepted electronic signature services (ex. DocuSign) shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
13.16. Remedies. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
13.17. Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding this matter, and they supersede all prior discussions or agreements related to the same. Should Customer utilize a purchase order (or other form which includes additional terms and conditions), any additional terms and conditions in such document shall not bind Terryberry, unless such additional terms and conditions have been expressly acknowledged in writing by Terryberry in an amendment as overriding this Agreement. Fulfillment of Customer’s order by Terryberry does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.
14.1. Headings. The section and subsection headings used herein are for reference and convenience only and shall not enter into the interpretation thereof.
14.2. English Version. This Agreement shall be executed in its English language version. In the event such documents are also executed in a different language version other than English, the English-language version shall prevail in the event of any discrepancies, inconsistencies, or conflicts between such versions.
14.3. Definitions. Capitalized terms shall have the meaning set forth below. Defined terms stated in the singular may be used in the plural, and vice versa.
14.3.1. “Affiliate” means, with respect to a party, any entity or individual that directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of the Affiliate definition, an entity or individual “controls” an entity if it has the power to direct the management and policies of the entity, through ownership of more than 50% of the voting securities of an entity, representation on its board of directors or other governing body, or by contract.
14.3.2. “Applicable Data Protection Laws” means the EU General Data Protection Regulation (2016/679) (“GDPR”), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), and the California Consumer Privacy Act, in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply.
14.3.3. “Applicable Law(s)” means all laws, statutes, codes, rules, regulations, and other pronouncement having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision, including those promulgated, interpreted or enforced by any governmental or regulatory authority, and any order of a court or governmental agency of competent jurisdiction in effect as of the Effective Date and as they may be amended, changed or modified from time to time.
14.3.4. “Authorized User” means any individual to whom Customer grants access authorization in compliance with a license to use the Services that is an employee, agent, contractor or representative of (i) the Customer, (ii) Customer’s Affiliates, and/or (iii) Customer’s and Customer’s Affiliates’ Business Partners.
14.3.5. “Business Partner” means a legal entity or individual that requires access to the Services in connection with Customer’s internal business operations, including, but not limited to, distributors and/or suppliers of Customer.
14.3.6. “Confidential Information” means the nonpublic or proprietary business, technical or financial information disclosed to the Receiving Party by or on behalf of the Disclosing Party pursuant to this Agreement and includes all information marked by the Disclosing Party as confidential or proprietary and any other information, whether written or oral, that the Receiving Party should reasonably understand is confidential or proprietary to the Disclosing Party.For the avoidance of doubt, the terms and conditions of this Agreement are considered to be the Confidential Information of the Parties.
14.3.7. “Customer Data” means all electronic data, files and records which are provided or made available by Customer or any Authorized User and received, processed or stored by Terryberry, its contractors or the Services as part of the Terryberry Services provided to Customer.
14.3.8. “Customer Marks” means all registered or common law Customer trademarks, trade names, Services marks, slogans, and logos and such other Customer trademarks or logos as Customer identifies from time to time to Terryberry for branding or other use in connection with the Services.
14.3.9. “Documentation” means the Authorized User guides, installation documents, and specifications for the Services that are made available from time to time by Terryberry in electronic or tangible form, but excluding any sales or marketing materials.
14.3.10. “Domain” means an Internet electronic addresses, or any uniform resource locator and alphanumeric designations associated therewith registered with or assigned by any domain name registrar, domain name registry or other domain name registration authority as part of an electronic address on the Internet and all applications for any of the foregoing.
14.3.11. “Go Live Date” means the date that the Services shall go live, as set forth in an applicable Order or SOW.
14.3.12. “Intellectual Property” means a Party’s proprietary material, technology, or processes, including, but not limited to: services, software tools, proprietary framework and methodology, hardware designs, algorithms, works of authorship, inventions, deliverables, work product, trade secrets and developments objects and Documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party), and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed. For avoidance of doubt, Intellectual Property of Terryberry shall also include Intellectual Property created, developed, conceived, acquired, authored or reduced to practice by or on behalf of a Terryberry, whether alone or jointly with others.
14.3.13. “Nominet UK” shall mean the official registry of UK domain names.
14.3.14. “Order” means Terryberry’s quote accepted by Customer via Customer’s purchase order or other ordering document received by Terryberry to order Terryberry’s Services, which references the Services, pricing, payment terms, quantities, and other applicable terms set forth in an applicable Terryberry quote or ordering document.
14.3.15. “Site” means the website designed and owned by the Supplier for the purpose of providing the Benefits Services pursuant to this Agreement.
14.3.16. “SOW” or “Statement of Work” means a written order executed by the parties which identifies the Professional Services ordered by Customer, including the description, and associated fees.
14.3.17. “Professional Services” means implementation services, design services, consulting services and/or other professional services provided to Customer by Terryberry under an Order or SOW.
14.3.18. “Subscription Term” means the period of time during which Customer is subscribed to the Services, as specified in an Order and which shall begin upon delivery of the Services.
14.3.19. “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
14.3.20. “Usage Data” means data generated in connection with Customer’s access, use and configuration of the Services and data derived from it (e.g., types of applications or accounts utilized or interacting with the Services).
iCOM Works Limited is part of the Terryberry Group
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