1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: means these Terms of Service together with any Order Forms agreed between the parties and any ancillary agreements or documents referred to herein including but not limited to Statements of Work.
Affiliate: means any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the power, directly or indirectly, to direct, or cause the direction of the management and policies of an entity through the ownership of voting securities, by contract or otherwise.
Authorized Users: those employees, contractors, subcontractors, and agents who are Authorized by Client to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in the United States (or the Republic of Ireland – for European Clients) when banks are open for business.
Client: the client identified on the Order Form.
Client Data: the information and data (including Personal Data) inputted by Client, Authorized Users, or Asset Class on Client’s behalf for the purpose of using the Services or facilitating Client’s use of the Services.
Confidential Information: all non-public documentation, technical information, software, business information, feedback, trade secrets or know how or other materials, including Client Data, of a confidential nature or that are disclosed in confidence by either party to the other during the term of this contract.
Customer Success (Services) Billing Start Date: the date as set out on the Order Form.
Data Protection Laws: laws or regulations in any applicable jurisdiction that relate to (i) the confidentiality, collection, use, handling, processing, security, protection, transfer, or free movement of personal data, personally identifiable information, or customer information, (ii) electronic data privacy and security, (iii) trans-border data flow, or (iv) data protection.
Fees: the fees for the Services as set out in the Order Form.
Initial Term: the initial term of this Agreement as set out in the Order Form.
Normal Business Hours: 9.00 am to 5.00 pm (Eastern time for US and Rest of World, and GMT for Europe), each Business Day.
Party or Parties: Client and Asset Class.
Personal Data: any information in any form, format, or media (including paper, electronic, and other records) relating, directly or indirectly, to an identified or identifiable natural person.
Customer Success Services: the configuration and customisation services as set out in a Statement of Work.
Renewal Term: the period described in the Order Form.
Services: the Software and any other services as more particularly described in the Order Form.
Software Billing Start Date: the date as set out on the Order Form.
Software: the online software applications and platform provided by Asset Class as part of the Services.
Term: has the meaning given in Clause 12.1 (being the Initial Term together with any subsequent Renewal Terms).
Terms of Service: these terms of service.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes and e-mail.
2. ACCESS TO SERVICES
2.1 Subject to the terms and conditions of this Agreement, Asset Class hereby grants to Client a non-exclusive, non-transferable right, without the right to grant sublicenses, of access to and use of the Services during the Term.
2.2 Client may designate an Authorized User as an administrator (or “master” administrator) with control over Client’s service account, including management of Authorized Users and Client Data. Client is fully responsible for its choice of administrator and any actions they take. Client agrees that Asset Class’s responsibilities do not extend to the internal management or administration of the Services for Client.
2.3 In relation to the Authorized Users, Client undertakes that:
2.3.1 each Authorized User shall keep a secure password for their use of the Services and that each Authorized User shall keep his password confidential; and
2.3.2 if through any investigation it is revealed that any password has been provided to any individual who is not an Authorized User, then without prejudice to Asset Class’s other rights, Client shall promptly disable such passwords and shall not issue any new passwords to any such individual.
3. CLIENT’S OBLIGATIONS
3.1 Client shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Asset Class.
3.2 Client shall be responsible for the acts and omissions of its Affiliates and Authorized Users who access the Services, as though they were the acts and omissions of Client.
3.3 Client shall be responsible for obtaining and maintaining all necessary licenses as indicated in the Statement of Work required in order to access the Services. Client shall bear all costs associated with such licenses for the Term of this Agreement.
3.4 Client shall not during the course of its use of the Services intentionally access, store, distribute or transmit any Viruses, or any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorized advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
3.5 Client shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this agreement; (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) work around any technical limitations in the Services.
3.6 Client shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement including Data Protection Laws; (ii) obtain and shall maintain all reasonably necessary licenses, consents, and permissions necessary for Asset Class and subcontractors to perform their respective obligations under this Agreement; and (iii) ensure that its network and systems comply with specifications provided by Asset Class and will be solely responsible for procuring and maintaining its network connections and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links.
3.7 Without prejudice to Asset Class’s other rights in law or equity, Asset Class reserves the right, without liability to Client, to suspend or disable Client’s or any Authorized Users’ access to the Services where Client materially breaches the provisions of clauses 3.4 or 3.5 and Client shall not thereby be entitled to claim any refund or compensation for such suspension. Notwithstanding the foregoing, upon Client’s cure of the breach to the reasonable satisfaction of Asset Class, Asset Class will resume Client’s access to the Services.
4. ASSET CLASS OBLIGATIONS
4.1 Asset Class shall (i) comply with all applicable laws and regulations in connection with the performance of its obligations under this Agreement including Data Protection Laws and the transmission of technical or Personal Data.
4.2 Asset Class shall maintain disaster recovery plans (“DRPs”) for restoring its current and off-site Client Data processed pursuant to this Agreement. Asset Class shall maintain business continuity plans (“BCPs”) for restoring its critical business functions. Upon request from Client, Asset Class shall provide evidence that the DRPs and BCPs relating to the Services are tested on a regular basis in accordance with industry standards to ensure that the Services can be restored and that Client data is protected in the event of a disaster or a business continuity event (including malware or ransomware).
4.3 Asset Class shall provide and maintain at its expense during the Term of the Agreement, and for a period of two years following the expiration or termination of the Agreement, the following insurance coverages: (a) comprehensive general liability insurance with contractual liability insurance to cover liability relating to the Agreement, the limits of which insurance shall not be less than $50,000 per occurrence and $500,000 annual aggregate; (b) errors and omissions insurance, the limits of which shall not be less than $50,000 per occurrence and $500,000 annual aggregate; and cyber or network liability insurance, including privacy liability, the limits of which shall not be less than $50,000 per occurrence/claim and $500,000 annual aggregate. Each policy shall provide that 30 days prior written notice be given by insurer to Client in the event of any termination or cancellation. Asset Class shall be responsible for its own deductibles and retention. The fact that Asset Class has obtained the insurance required in this clause 4.3 shall not lessen or otherwise affect Asset Class’ other obligations or liability set forth in the Agreement, including its obligations to defend, indemnify and hold Client, its subsidiaries, and its and their directors, officers, employees, contractors and agents harmless in accordance with this Agreement.
4.4 Asset Class shall not retain any subcontractors to perform work or provide services under this Agreement without the prior consent of Client. Notwithstanding the foregoing, no permitted subcontractor shall relieve Asset Class of its responsibility and liability for any services provided or work performed by a subcontractor.
5. FEES AND PAYMENT
5.1 Asset Class shall invoice Client and Client shall pay the Fees in accordance with the provisions of the Order Form and this clause 5.
5.2 If Asset Class has not received payment of Fees within fifteen (15) days after the due date, and without prejudice to any other rights and remedies of Asset Class, Asset Class may, without liability to Client, and upon seven (7) days’ written notice to Client, and provided there is no ongoing dispute under this agreement, disable Client’s password, account and access to all or part of the Services and Asset Class shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such due amounts at an annual rate equal to the Federal Funds Effective Rate in effect on the due date, as published by the Federal Reserve Bank of New York, plus five percent (5%)
or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment. For the avoidance of doubt, once payment has been received access for all users to the system will be immediately reinstated to it’s fully accessible state.
5.3 All amounts stated or referred to in this Agreement are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Asset Class’s invoice(s) at the appropriate rate. Client will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement. Client shall pay all Fees in full without set off or counterclaim.
5.4 Where any usage limitations are indicated on an Order Form, Asset Class shall notify Client in the event of such limitations being breached at any time together with details of increased rates to apply to continued usage during the billing period.
5.5 Fees for Renewal Terms are as specified in the Order Form or if not specified shall be at Asset Class’s then-current rates, regardless of any discounted pricing in a prior Order.
6. SUPPORT AND MAINTENANCE
6.1 Client may contact Asset Class for support in relation to the Services by contacting support@assetclass.com. Support hours are from 9am to 5pm Eastern Time (US Clients and Rest of World), GMT (European Clients). Asset Class will provide the following support commitments, subject to the nature of the support request.
Nature of Support Request
Service-affecting
2 Hour - Time to respond
8 Hours - Time to fix
Non service-affecting
8 Hours - Time to respond
48 Hours- Time to fix
A ‘service-affecting’ trouble-ticket will be assigned to any fault or support case raised that is related to impairment of, access to, or use of the Asset Class Services by Client, or its external clients e.g. Online Service is unavailable or the functionality expected of the platform is unavailable.
A ‘non service-affecting’ trouble-ticket will be assigned to any fault or support case raised that does not impair the Client, or its external clients from accessing and using the Services and functionality expected of the platform.
Both the ‘Time to respond’ and ‘Time to fix’ periods start from the date and time-stamp of the trouble-ticket, or if a support request is received outside of the agreed support hours, 9am ET on the following Business Day
6.2 From time to time it may be necessary for Asset Class to complete maintenance on the Asset Class system. If the maintenance is likely to result in unavailability of the Services then Asset Class will endeavor to advise Client in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice. A “Significant Event” is any event which may be service-affecting for the Client which was unforeseen and unplanned. Examples include hardware failure at the Salesforce.com data center or any catastrophic impact to Services not reasonably anticipated in the normal course of provision of Services. The provisions of clause 14 shall not apply to any Significant Event.
7. WARRANTIES AND DISCLAIMER
7.1 Each Party warrants that it has the full corporate power (i) to enter into this Agreement, (ii) to carry out its obligations hereunder, (iii) to grant the rights herein granted to the other Party.
7.2 Client warrants that Client Data, material, content or links provided to Asset Class by or on behalf of Client: (i) are owned by Client or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property, injury, damage or harm of any kind to any person or entity.
7.3 Asset Class warrants that (a) it will perform the Services in a timely and professional manner and otherwise consistent with general industry standards reasonably applicable to the provision of the same or similar services, and (b) the Services will perform substantially in accordance with Asset Class help documentation under normal use and circumstances.
7.4 Asset Class represents that the Services and the Client’s use of the Services as intended under this Agreement will not infringe or misappropriate any intellectual property rights of any third party. Asset Class further represents that it has the right to grant the rights and/or licenses granted to Client in this Agreement.
7.5 Asset Class warrants that it has implemented industry best practices to: (a) screen for and eliminate Malicious Code (as defined herein) prior to provision of the Services; and (b) scan for, identify, and remove any Malicious Code from the Services. Malicious Code shall mean any code, files, scripts, agents or programs intended to do harm, including for example, viruses, worms, time bombs, Trojan horses.
7.6 Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by Asset Class from this Agreement. Client is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws.
7.7 Asset Class does not warrant that Client’s use of the Services except as otherwise provided herein.
7.8 Client may choose to use the Services with third-party platforms. Use of third-party platforms is subject to Client’s agreement with the relevant provider and not this Agreement. Asset Class does not control and has no liability for third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Client Data. If Client enables a third-party platform with the Services, Asset Class may access and exchange Client Data with the third-party platform on Client’s behalf.
7.9 Asset Class reserves the right to introduce new or enhanced features and functionalities to the Services upon notice to Client.
7.10 Asset Class represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Data does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives.
7.11 Asset Class represents and warrants that (i) the Services will conform to and perform in accordance with the Specifications and all requirements of this Agreement; (ii) all Specifications are, and will be continually updated and maintained so that they continue to be, current, complete, and accurate so that they do and will continue to fully describe the Services in all respects such that at no time will the Services have any material undocumented feature; and (iii) Asset Class’s systems and Services are and will remain free of Virus; and
7.12 Asset Class represents and warrants that it will perform all Services in a professional and workmanlike manner in accordance with best industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and shall devote adequate resources to meet its obligations under this Agreement.
8. CUSTOMER SUCCESS SERVICES
8.1 Any Customer Success Services requested by Client shall be set out in the relevant Order Form and detailed in a Statement of Work. Client will give Asset Class timely access to any Client materials reasonably needed for the additional Services, and if Client fails to do so, Asset Class’s obligation to provide the Services will be excused until access is provided. Asset Class will use Client materials only for purposes of providing the Services.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Client acknowledges and agrees that Asset Class and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services. To the extent that any modifications or improvements to the Services and Software are carried out under or in connection with this Agreement, whether by Asset Class alone or jointly with Client, and whether based on ideas or suggestions from Client, all intellectual property rights to such underlying ideas and in any resulting improvement or modifications shall be assigned to and shall vest with and be solely owned by Asset Class and/or its licensors.
9.2 Client shall be and remain the sole and exclusive owner of all right, title and interest in and to all of Client Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
10. INDEMNITY
10.1 Asset Class will indemnify Client, its subsidiaries and affiliates, and their respective employees, directors, officers, and agents, in respect of any and all damage, awards of damages, losses, costs, expenses, fees (including any regulatory fines and reasonable legal fees), fines and penalties to the extent arising out of claims by third parties that the Services infringes a third-party’s copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, Asset Class will at its expense and option either: (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) terminate this Agreement and refund to Client fees paid for any unused portion of the Services. In addition, Asset Class will indemnify Client, its subsidiaries and affiliates, and their respective employees, directors, officers, and agents, for any and all damage, awards of damage, losses, costs, expenses, fees, (including any regulatory fines and reasonable legal fees), fines and penalties that arise from: (i) the gross negligence, willful misconduct, or fraud of Asset Class, its Affiliates, personnel, or subcontractors, and (ii) any breach of applicable law including violations of third party rights due to Client’s use of the Services.
10.2 Notwithstanding the above, Asset Class shall have no liability to Client to the extent that any claim is based upon (i) modifications to the Services made by anyone other than Asset Class; (ii) a claim for which Client must indemnify Asset Class below; (iii) combination of the Services with software not provided by Asset Class or specified in any agreed documentation; (iv) Client’s failure to use modifications to the Services provided by Asset Class to avoid infringement or misappropriation; or (v) unauthorized use of the Services.
10.3 Client shall indemnify Asset Class and its Affiliates from and against all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, expenses and liabilities (including any regulatory fines and reasonable legal fees) that result or arise from; (i) unauthorized use of the Services or infringement of Asset Class’s Intellectual Property, and (ii) any breach of applicable law including violations of third party rights due to Client’s use of the Services.
10.4 If any action shall be brought against one of the Parties hereto in respect to which indemnity may be sought against the other Party (the “Indemnifying Party”) pursuant to this clause 10, the Indemnifying Party’s obligation to provide such indemnification will be conditioned on prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided to the Indemnifying Party by the Party against which such action is brought (the “Indemnified Party”). The Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defense of any such action at the expense of the Indemnifying Party. The Indemnifying Party will, upon written notice to the Indemnified Party, conduct all proceedings or negotiations in connection with the action, assume the defense thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defense, negotiations and proceedings. The Indemnifying Party will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder, provided that the Indemnifying Party will not enter into any settlement of such claim without the prior approval of the Indemnified Party, which approval will not be unreasonably withheld. The Indemnified Party shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.
10.5 The rights granted to Client under this Clause 10 shall be Client’s sole and exclusive remedy and Asset Class’s entire liability for any alleged or actual infringement of intellectual property rights of any third party.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement limits or excludes liability of either Party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.
11.2 To the maximum extent permitted by applicable law, neither Party will have any liability to the other Party for any lost profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not a Party has been advised of the possibility of such.
11.3 Except with respect to excluded claims in clause 11.4 the Parties’ total aggregate liability arising out of or related to this Agreement or the Services (under any theory of law (including liability for negligence) shall not exceed the total aggregate amount of the Fees paid and payable by Client or $50,000, whichever is the lower.
11.4 Limitations of liability in this Section shall not apply to claims or losses arising from: (i) fraud, gross negligence, or willful misconduct by Asset Class, its employees or subcontractors; or (ii) the Parties’ indemnity obligations under this Agreement.
12. TERM AND TERMINATION
12.1 This Agreement shall commence on the Effective Date and shall unless otherwise terminated as provided in this Clause 12 continue for the Initial Term and, thereafter, this agreement shall automatically renew for the Renewal Terms unless either Party notifies the other Party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term or otherwise terminated in accordance with the provisions of this agreement. The Initial Term together with any subsequent Renewal Terms shall constitute the Term. If Asset Class wishes to modify pricing for the Services for such a Renewal Term it may do so in accordance with clause 5.
12.2 Either Party shall be entitled to terminate the Agreement on written notice in the event of:
12.2.1 a material breach of this Agreement by the other Party which, if capable of remedy, is not remedied by the defaulting party within thirty days of its receipt of written notice of the breach from the non-defaulting Party;
12.2.2 fraud or willful default of the other Party; or
12.2.3 the other Party becoming insolvent or unable to pay its debts when due (as defined by applicable law) or has a liquidator, receiver or manager appointed to it, or a winding-up order instituted against it.
12.3 On termination of this Agreement for any reason:
12.3.1 all licenses granted under this agreement shall immediately terminate and all right to access the Services shall immediately terminate;
12.3.2 each Party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other Party;
12.3.3 at Client’s option and upon its written request, Asset Class shall: (A) continue to retain the Client Data, or solely such specific databases or other collections or articles of Client Data as Customer may request, as though this Agreement and all Service Orders were still in force, for a period to be agreed to by the parties in writing, but that in no event will be shorter than 45 days or longer than 180 days after the effective date of such expiration or termination, as applicable; and (B) immediately upon the conclusion of such Customer Data retention period, return such Customer Data to the information technology infrastructure, including the computers, software, databases, electronic systems (including database management systems), and networks, of Client or any of its designees (collectively, “Client Systems“), taking all steps required or reasonably requested to make an orderly transition of the Services and the Client Data to the Client Systems and to assist Client and any of Client’s designees in migrating such Client Data to the Client Systems in both Asset Class’s data format and a platform-agnostic format;
and
12.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. CONFIDENTIALITY
13.1 Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other Party, (the “Disclosing Party”). The Receiving Party shall keep in confidence all Confidential Information disclosed by the Disclosing Party and shall not use Confidential Information except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (“Representatives”) on a “need-to-know” basis, provided that such Representatives are advised of or under a duty to maintain the Confidential Information in confidence and the Receiving Party remains ultimately liable for any disclosure in contravention to this Section 13 by a Representative as if disclosed by the Receiving Party itself.
13.2 The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 13.3.
13.3 This clause 13 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
13.4 Any breach or threatened breach by the Receiving Party of an obligation under this Agreement may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
13.5 The Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
13.6 Each Party agrees that upon the expiration or termination of this Agreement for any reason, or upon the request of either Party at any time, the Receiving Party will immediately return to the Disclosing Party any and all Confidential Information under the Receiving Party’s control or in its possession, and will not at any time thereafter use, copy, process, reproduce, transmit or furnish to any other party any such Confidential Information; provided, however, their Party may retain, subject to the restrictions and conditions in this Agreement, copies of such Confidential Information as is actually necessary for (i) audit copies required by law; (ii) litigation (subject to obtaining appropriate judicial protective orders); (iii) compliance with applicable laws; (iv) preservation of such Party’s Confidential Information to the extent it is embedded in and inextricable from the other Party’s Confidential Information; and (v) enforcement or protection of such Party’s legal rights, including any intellectual property rights. Any permitted retention of Client Data (including Personal Data) shall be used by Asset Class solely for audit and recovery purposes and shall be maintained and used in accordance with the Security Requirements.
14. FORCE MAJEURE
Neither Party shall have liability to the other Party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, provided that the non-affected Party is notified of such an event and its expected duration. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance (1) of an obligation that does not result in a disruption in Service continues for one (1) month, the Party not affected may terminate this Agreement by giving one calendar month written notice to the other Party, or (2) of an obligation that results in any disruption in Service continues for two (2) weeks, the Party not affected may immediately terminate this Agreement. Disruptions in Service caused by one or more of the following shall not be excused as a force majeure event: (i) downtime caused by viruses or Malicious Code, (ii) server failures, (iii) Software bugs, glitches, or defects, or (iii) disputes with copyright owners. Notwithstanding any other provision of this Section, no force majeure event shall relieve Asset Class of its obligation to use commercially reasonable efforts to continue to comply with the Security Requirements, or excuse, limit, or otherwise affect its obligation to implement the DRPs or BCPs.
15. MISCELLANEOUS
15.1 No forbearance, delay or granting of time by either party in or before enforcing the Agreement shall prejudice its rights.
15.2 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
15.3 This Agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. 15.4 Either Party may transfer all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which such Party is participating. Any attempt to transfer this Agreement in violation of this provision shall be void and of no effect.
15.5 Neither Party may publicly announce this Agreement except with the other Party’s prior consent or as required by applicable laws. However, Asset Class may include Client and its trademarks in Asset Class’s customer lists and promotional materials with Client’s prior written consent.
15.6 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or authorize either Party to act as agent for the other.
15.7 Except for notices of Security Incidents any notice to be given by either Party for the purposes of the Agreement shall be sent by mail/email to the contact Party whose details are set out in the Order Form. A notice delivered (i) by hand shall be deemed to have been received when delivered or if delivery is not in business hours, at 9:00 am on the first business day following delivery, (ii) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two days from the date of posting and five days for pre-paid registered airmail, and (iii) by email shall be deemed to have been received at 9.00 am on the next working day (being a day other than a Saturday, Sunday or bank holiday when banks in Ireland are open for business) after transmission.
15.8 The following Clauses shall survive the termination or expiration of this Agreement: clause 3, 4, 7, 9, 10, 11, 12, 13, 14 and this clause 15.
15.9 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each Party.
15.10 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.
15.11 The Parties shall act in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the senior management of the Parties shall be the initial preferred dispute resolution methodology.
This Agreement and any disputes or claims arising out of or in connection with it are governed by and construed and enforced in accordance with the laws of the State of Delaware. The parties irrevocably agree that the state or federal courts located in the State of Delaware have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims) and that any action to enforce or interpret this Agreement shall be brought in the state or federal courts in the State of Delaware (US Clients), or the courts of the Republic of Ireland (European and Rest of World Clients). Each Party: (i) expressly consents to the jurisdiction of any such court; (ii) irrevocably waives any claim that such court lacks jurisdiction over it; (iii) agrees not to plead or claim, in any legal action or proceeding with respect to this Agreement brought in any of the aforesaid courts that any such court lacks jurisdiction over it; (iv) irrevocably waives any objection that it may now or hereafter have to venue of any actions or proceedings arising out of or in connection with this Agreement in the courts referred to in this clause 15.11; and (v) irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
