Master Subscription Agreement
Version Number: 1.0.0
This Master Subscription Agreement and the Order Form governs Trelica’s provision of the Services, the Documentation, and any Professional Services to the Customer, as set forth in an applicable Order Form executed between Trelica Limited (“Trelica”) and the entity identified as the customer in any Order Form (the “Customer”) (each a “Party” and collectively, the “Parties”).
By executing or signifying acceptance of an Order Form (whether electronically, or physically) that incorporates this MSA by reference, the Customer agrees to the terms of this MSA. If the individual signing the Order Form for the Customer is signing on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind that company or other legal entity.
Together, the MSA, and any applicable Order Form(s) constitute the “Agreement” or “Customer Agreement”.
In this Agreement:
1.1 the following words and expressions have the following meanings:
Account Subscriptions: the subscriptions for the Applicable Accounts granted to the Customer pursuant to the Order Form (whether for a Trial Subscription or otherwise) which entitles Authorised Users to access and use the Services and the Documentation in accordance with the Agreement.
Agreement Personal Data: has the meaning given to it in clause 6.8.1.
API: an application programming interface which connects the Software with the Customer’s (or the Customer’s third party provider’s) systems in order to facilitate the Services.
API Provider: means the third party provider of any API.
API Provider Terms: means any license or other terms, issued by an API Provider from time to time, governing Trelica’s use of, or connection of the Software or Services to, any API.
Applicable Accounts: the unique identities with an ‘active’ status that the Customer notifies to the Software, using the method specified in the Order Form, and as listed in the Trelica application at https://app.trelica.com/People. Identities are typically sourced from the Customer nominated identity providers connected to the Services and which list people with access to Customer IT systems (including but not limited to employees or contractors).
Applicable Laws: has the meaning given to it in clause 6.12.1.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Beta Services: means a “beta” or pilot version of part or all of the Services, which is not a final release and which may exhibit errors or other inconsistencies, that Trelica designates as ‘beta’, ‘early adopter’ or ‘non generally available.’
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or 12.6.
Controller, processor, data subject, personal data, personal data breach, processing, and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data: the data inputted by the Customer, Authorised Users, or Trelica on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Documentation: the documents made available to the Customer by Trelica for the purpose of explaining how the Software works, as updated by Trelica from time to time. This includes but is not limited to the documents available via the ‘Help’ link displayed within the application at https://app.trelica.com or such other web address notified by Trelica to the Customer from time to time. Documentation does not include white papers, case studies, community forums, marketing materials or other similar resources which may be made available for the Customer’s convenience.
Effective Date: the date the Customer enters into an Order Form (either by signing or signifying its acceptance to such Order Form, or by signing up to a Trial Subscription) or such other date as the Parties may specify in the Order Form.
Initial Subscription Term: the initial term of the Agreement as set out in the Order Form.
MSA: this Master Subscription Agreement (as amended from time to time).
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Order Form: means the order, in the form prescribed by Trelica, submitted by the Customer for use of the Services and accepted by Trelica and which incorporates this Master Subscription Agreement. In relation to a Trial Subscription, the sign up page for such Trial Subscription constitutes the applicable Order Form.
Professional Services: means the professional services (such as configuration, consulting and training), if any, to be delivered by Trelica to the Customer as specified in the Order Form in accordance with clause 4.
Professional Services Fees: the fees payable by the Customer for Professional Services provided by Trelica as set out in an Order Form.
Renewal Period: the period set out in the Order Form as a renewal period which operates as described in clause 15.1.1.
Services: the subscription services provided by Trelica to the Customer under this Agreement via https://app.trelica.com or any other website notified to the Customer by Trelica from time to time, excluding Professional Services (if any) performed in accordance with the applicable Order Form.
Service Level Agreement: Trelica’s commitments in relation to the uptime and availability of the Services, as available on https://legal.trelica.com/service-level-agreement and as may be updated from time to time.
Software: the online software components provided by Trelica as part of the Services as set out in the Order Form.
Subscription Fees: the subscription fees payable by the Customer to Trelica for the use of the Services, as set out in an Order Form.
Subscription Rate: the price for use of the Services per Applicable Account, per month, for a Subscription Term as set out in the Order Form.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods as set out in an Order Form.
Suspension: a suspension of all or part of the Software or any Services in accordance with clause 2.4 of this MSA.
Third Party Software: any open-source or other software relating to the Software that is not proprietary to Trelica including any APIs which allow the Customer to connect to the Software and Services.
Third Party Software Provider: the provider of any Third Party Software.
Third Party Software Terms: terms between Trelica and any licensor, owner, grantor of rights, or any other equivalent of Third Party Software, including API Provider Terms.
Third Party Services: has the meaning given to it in clause 7.1.
Trial Subscription: a subscription for Applicable Accounts granted to the Customer on a trial basis by Trelica.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Virus: any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 Save as specified elsewhere in this Agreement, a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail but excludes fax and any other methods of electronic messaging.
1.10 Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
1.11 References to clauses and schedules in this MSA are to the clauses and schedules of this MSA; references to paragraphs are to paragraphs of the relevant schedule to this MSA.
2.1 Subject to the Customer purchasing the Account Subscriptions in accordance with the Order Form or being granted Account Subscriptions under a Trial Subscription, the restrictions set out in this clause 2 and the other terms and conditions of the Agreement, Trelica hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations in relation to the management of the Customer’s use of SaaS applications, and only through the website https://app.trelica.com or any other website that Trelica informs the Customer of in writing from time to time.
2.2 The Customer is prohibited from using the Services to provide any service to a third party, whether under a service bureau model or any other model.
2.3 In relation to the Authorised Users, the Customer undertakes that:
2.3.2 it shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use (including any suspected unauthorised access or use), promptly notify Trelica and take all reasonable steps at Trelica’s direction to stop such unauthorised access or use.
2.4 Trelica may directly or indirectly, suspend or otherwise deny the Customer’s (including any Authorised User’s) access to, or use of, all or any part of the Software or any Services provided under an Order Form without incurring any resulting obligation or liability, if Trelica reasonably determines or suspects that:
2.4.1 there is a threat or attack on the Software or the Services;
2.4.2 the Customer’s or any Authorised User’s use of the Software or the Services disrupts or poses a security risk to Trelica, the Software or the Services or to any other customer or vendor of Trelica;
2.4.3 the Customer, or any Authorised User, is using the Software or the Services for fraudulent or illegal activities;
2.4.4 the Customer’s, or any Authorised User’s, use of the Software or the Services has or will place Trelica in breach of any Third Party Software Terms or any other arrangements it has with any provider of Third Party Software;
2.4.5 the Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution, or similar proceeding;
2.4.6 Trelica’s provision of the Software or the Services to the Customer or any Authorised User is prohibited by applicable law or any Third Party Software Terms;
2.4.7 any vendor of Trelica and/or any Third Party Software Provider has suspended or terminated Trelica’s access to or use of Third Party Software or any other third party services or products required to enable Trelica to provide, or the Customer to access, all or any part of the Software or the Services; or
2.5 Trelica shall use reasonable efforts to provide written notice of any Suspension and to provide updates regarding resumption of access to the Software and/or the Services (as applicable) following any Suspension. Trelica shall use reasonable efforts to resume providing access to the Software and/or the Services (as applicable) as soon as reasonably possible after the event giving rise to the Suspension is cured. Trelica will have no liability for any Service Credits, damage, liabilities, losses (including any loss of data or profits), expenses, or any other consequences that the Customer may incur as a result of a Suspension. Section 2.4 and this Section 2.5 do not limit any of Trelica’s other rights or remedies, whether at law, in equity, or under the Agreement (including, without limitation, Trelica’s rights to terminate the Agreement).
2.6 Trelica reserves the right, in its sole discretion, to charge the Customer, and the Customer agrees to pay, any charges, fees or other costs incurred by Trelica in resuming the provision of access to the Software or Services following a Suspension, that is caused by, or attributed to, the Customer or any Authorised User.
3.1 The following terms apply to Trial Subscriptions only, in addition to the other terms of this Agreement:
3.1.1 The Customer acknowledges that a Trial Subscription is granted solely to permit the Customer to evaluate the Services;
3.1.2 A Trial Subscription is granted solely at Trelica’s discretion and may be refused, or terminated at any time by Trelica at its discretion;
3.1.3 Trial Subscriptions are not renewable and clause 15.1 will not apply to Trial Subscriptions;
3.1.5 Any variations pursuant to clause 19 made during a Trial Subscription will take effect immediately on notice to the Customer;
3.1.6 Any Customer Data, and any configurations or customisations made to the Services during a Trial Subscription will be permanently lost at the end of a Trial Subscription unless an Order Form is entered into for the continued use of the Services; and
3.1.7 The Customer may enter into an Order Form at any time during a Trial Subscription for the use of the Services following the end of the Trial Subscription and any continued use of the Services following the entry of such Order Form will be subject to the terms of the new Order Form. 3.2 To the extent there is any conflict with this clause 3 and any other clauses in this MSA, this clause 3 will prevail.
4.1 Trelica shall provide the Professional Services (if any) purchased in the applicable Order Form. Subscription to the Services are not contingent on any Professional Services. The Parties acknowledge that the scope of the Professional Services shall be as set out in an Order Form.
4.2 The Customer shall have a limited license right to use any deliverables (including any documentation, code, training materials or other work product) delivered as part of the Professional Services (“Deliverables”) solely in connection with your use of the Services, subject to all the same terms and conditions as apply to your usage of the Services, and subject to any additional terms and conditions provided with the Deliverables. Ownership of any Deliverables shall remain with Trelica or its licensors.
4.3 The Customer may order Professional Services under an Order Form describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.
4.4 The Customer will be responsible for the performance of any Customer dependencies that are specified in the Order Form and Trelica will not be responsible for any failure to perform its obligations in relation to the Professional Services to the extent resulting from a failure by the Customer to perform those dependencies.
4.5 The Customer will reimburse Trelica for reasonable travel and lodging expenses as incurred by Trelica in performance of the Professional Services.
5.1 From time to time, Trelica may make Beta Services available to the Customer at no charge. The Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation use, are not supported, and may be subject to supplemental terms that will be presented to the Customer.
5.2 Beta Services are not considered “Services” under this Agreement; however, all restrictions, Trelica’s reservation of rights and the Customer’s obligations concerning the Service, and use of any Third Party Services shall apply equally to the Customer’s use of Beta Services. Trelica may discontinue Beta Services at any time and may never make them generally available.
5.3 Trelica will have no liability for any harm or damage arising out of or in connection with a Beta Service and use of such Beta Service is at solely the Customer’s risk.
6.1 The Customer shall own all right, title and interest in and to all Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2 The Services may enable Authorised Users to submit, post or display Customer Data to or on the Software or via the Software to Third Party Services. The Customer acknowledges that Trelica does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability, usefulness, timeliness or other attributes of any Customer Data, nor does Trelica review, test or attempt to verify the accuracy or currency of any Customer Data. As between the Customer and Trelica, the Customer is solely responsible for:
6.2.1 determining the suitability of any Customer Data for its intended use by the Customer (including any necessary testing); and
6.2.2 as necessary for its intended use, verifying the authenticity, integrity, security and accuracy of Customer Data prior to using it.
6.3 Trelica has no obligation to preview, verify, flag, modify, filter or remove any Customer Data. Trelica may, in its sole discretion:
6.3.1 modify and add Customer Data made available through the Software; and
6.3.2 remove, disable or restrict access to any Customer Data (but is not responsible for any failures or delays in removing, disabling or restricting access to any Customer Data, unless otherwise provided herein),
including Customer Data that may be considered harmful, inaccurate, unlawful or otherwise objectionable or if Trelica is required by any third party rights holder to remove Customer Data, or receives information that Customer Data may violate applicable law or third party rights.
6.4 The Customer agrees that Trelica: (i) may generate aggregate information from Customer Data or from the Customer’s use of the Services (“Aggregate Data”); (ii) may offer the Customer personalised suggestions based on Aggregate Data; (iii) may combine such aggregate information with that of other customers; and, (iv) will own such Aggregate Data and will be entitled to use Aggregate Data for any purpose provided Trelica does not use or distribute any Aggregate Data in a way which identifies the Customer or the Authorised Users.
6.5 Trelica shall follow its archiving procedures for Customer Data as set out in its Backup Policy. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Trelica shall be for Trelica to use reasonable endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by Trelica in accordance with the archiving procedure described in its Backup Policy. Trelica shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third Parties sub-contracted by Trelica to perform services related to Customer Data maintenance and backup for which it shall remain fully liable subject to the limits and exclusions of Trelica’s liability set out in this MSA).
6.7 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.
6.8 The Parties acknowledge that:
6.8.1 if Trelica processes any personal data on the Customer’s behalf when performing its obligations under this Agreement (“Agreement Personal Data”), the Customer is the controller and Trelica is the processor for the purposes of the Data Protection Legislation.
6.8.2 the scope, nature and purpose of processing of Agreement Personal Data by Trelica, the duration of the processing and the types of Agreement Personal Data and categories of data subject are each set out in Schedule 1 (Agreement Personal Data), subject to any additions or amendments specified in the relevant Order Form.
6.8.3 Agreement Personal Data may be transferred or stored outside the EEA and the UK or the country where the Customer and the Authorised Users are located in order to carry out the Services and Trelica’s other obligations under this Agreement.
6.9 The Customer authorises Trelica to process the Agreement Personal Data during the Subscription Term as a Processor.
6.10 The Customer warrants to Trelica that:
6.10.1 it has all necessary rights, consents and/or notices in place to authorise Trelica to process Agreement Personal Data in accordance with this Agreement and the Data Protection Laws; and
6.10.2 its instructions to Trelica relating to processing of Agreement Personal Data will not put Trelica in breach of Data Protection Laws, including with regard to any international transfer made in accordance with clause 6.14.2.
6.11 If Trelica considers that any instructions from the Customer relating to processing of Agreement Personal Data may put Trelica in breach of Data Protection Laws, Trelica will be entitled not to carry out that processing and will not be in breach of this Agreement or otherwise liable to the Customer as a result of its failure to carry out that processing.
6.12 Without prejudice to the generality of clause 6.7, Trelica shall, in relation to any Agreement Personal Data:
6.12.1 process Agreement Personal Data only on the documented written instructions of the Customer unless Trelica is required by the laws of any member of the European Union or by the laws of the European Union applicable to Trelica and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) (“Applicable Laws”) to otherwise process Agreement Personal Data. Where Trelica is relying on Applicable Laws as the basis for processing Agreement Personal Data, Trelica shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Trelica from so notifying the Customer;
6.12.2 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with the Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.12.3 notify the Customer without undue delay on becoming aware of a personal data breach involving Agreement Personal Data;
6.12.4 ensure that persons authorised to process Agreement Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
6.12.5 at the written direction of the Customer, delete or return Agreement Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to continue to store that Agreement Personal Data (and for these purposes the term “delete” shall mean to put such data beyond use); and
6.12.6 maintain records to demonstrate its compliance with this clause 6.
6.13 Each Party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Agreement Personal Data and against accidental loss or destruction of, or damage to, Agreement Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). The Customer acknowledges that for the purposes of this clause, the security measures described in the Security Practices constitute appropriate technical and organisational measures to be taken by Trelica in relation to the Agreement Personal Data.
6.14 The Customer hereby provides its prior, general authorisation for Trelica to:
6.14.1 appoint sub-processors to process the Agreement Personal Data (including those sub-processors listed at https://legal.trelica.com/third-party-sub-processors as may be updated from time to time), provided that Trelica:
18.104.22.168 shall ensure that the terms on which it appoints such sub-processors will comply with Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in clauses 6.12, 6.13 and this clause 6.14;
22.214.171.124 remain responsible for the acts or omissions of any such sub-processor as if they were the acts and omissions of Trelica; and
126.96.36.199 shall notify the Customer of any intended changes concerning the addition or replacement of the sub-processors. The Customer will be given 30 days to submit to Trelica a written objection to any change or addition, after which period and if no objection has been received, the Customer is assumed to have given consent. If the Customer objects, the Customer and Trelica will negotiate in good faith to seek a mutually agreeable solution. If a solution is not agreed within 30 days either Party has the right to immediately terminate the Agreement on written notice to the other Party; and
6.14.2 transfer Agreement Personal Data outside of the UK, provided that Trelica shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, each Party shall act reasonably and in good faith in responding to any request by the other Party to enter into standard data protection clauses adopted by the EU Commission or the UK’s Information Commissioner’s Office from time to time.
7.1 The Service may contain links to, content (whether static or dynamic content) from, and integrations (including, without limitation, through APIs) with third party websites, applications and services, and content actively made available by a third party using the Services itself (“Third Party Services”), including the ability for the Customer to access, utilise and/or make changes to such Third Party Services via the Services. The Customer agrees that:
7.1.1 Trelica provides links to, content from, and integrations with, such Third Party Services solely as a convenience on an ‘as is, where is’ basis and:
188.8.131.52 has no responsibility for the content or availability of such Third Party Services; and
184.108.40.206 does not review, test or attempt to verify the accuracy or currency of any Third Party Services;
7.1.2 Trelica does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability, usefulness, timeliness or other attributes of such Third Party Services (or any products or other services associated therewith);
7.1.3 access to any Third Party Services linked to the Service is at the Customer’s own risk, and Trelica is not responsible for the accuracy or reliability of any services, information, data, opinions, advice, content or statements made on such Third Party Services; and
7.1.4 the Customer’s use of such Third Party Services will be subject to the terms applicable to each such Third Party Service (“Third Party Services Terms”) and the Customer having in place appropriate rights to access such Third Party Service in accordance with those Third Party Services Terms and where required by the applicable Third Party Service, the Customer granting any applicable permissions necessary for the operation of the Services.
7.2 The Customer represents, warrants and undertakes to Trelica that:
7.2.1 it shall at all times comply with (and shall procure the compliance of its Authorised Users with) all Third Party Services Terms;
7.2.2 its (and any Authorised Users’) use of, access to, or interaction with, any Third Party Services through or in connection with the Services shall not place Trelica or any of Trelica’s affiliates or third party suppliers in breach of any Third Party Services Terms or any Third Party Software Terms; and
7.2.3 it has all necessary rights, consents and/or notices in place, to use, access or interact with any Third Party Services through or in connection with the Services.
7.3 The Software may contain proprietary and/or Third Party Software components that are subject to Third Party Software Terms. If so, the Customer shall (and shall procure that all of its Authorised Users shall) comply with all Third Party Software Terms relating to such Third Party Software as identified in the Order Form or notified by Trelica to the Customer from time to time, and if required for the performance of the Services, enter into the Third Party Software Terms.
7.4 The Customer will indemnify Trelica against all losses (including all direct, indirect and consequential losses), liabilities, costs, damages and expenses that Trelica does or will incur or suffer, all claims or proceedings made, brought or threatened against Trelica by any person and all losses (including all direct, indirect and consequential losses), liabilities, costs (on a full indemnity basis), damages and expenses that Trelica does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with any failure by the Customer to enter into, or any breach by the Customer of any of its obligations under any Third Party Software Terms (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations).
8.1 Trelica shall, during the Subscription Term, provide the Services and make available the Documentation, to the Customer on and subject to the terms of the Agreement.
8.3 Where Trelica is providing Professional Services, such Professional Services will be performed with reasonable skill and care.
8.4 Trelica will be relieved from any of its obligations under the Agreement to the extent that Trelica’s failure to meet any or any part of its obligations are caused by use of the Services contrary to Trelica’s instructions, or modification or alteration of the Services by any party other than Trelica or Trelica’s duly authorised contractors or agents, or any Third Party Software and/or Third Party Services.
8.5.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and
8.5.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications, networks, and facilities, including the internet and any API, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.6 This Agreement shall not prevent Trelica from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
9.1 The Customer shall:
9.1.1 provide Trelica with all necessary co-operation in relation to the Agreement;
9.1.2 provide Trelica with all necessary access to such information as may be required by Trelica in order to enable Trelica to discharge its obligations under the Agreement;
9.1.3 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.1.4 carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Trelica may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.5 ensure that the Authorised Users use the Services, any Professional Services and the Documentation in accordance with the User Terms, as incorporated by reference to this Agreement, and shall be responsible for any Authorised User’s breach of the Agreement;
9.1.6 obtain and shall maintain all necessary licenses, consents, and permissions necessary for Trelica, its contractors and agents to perform Trelica’s obligations under this Agreement, including without limitation the Services and any Professional Services;
9.1.8 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
9.1.9 ensure that its personnel are adequately trained in the correct use of the Services and any Professional Services and are provided with first line technical support in connection with use of the Services or Professional Services;
9.1.10 provide Trelica, its employees, agents, consultants and subcontractors, with timely access to the Customer’s systems, and personnel, as reasonably required by Trelica to provide the Services or the Professional Services; and
9.1.11 keep a complete and accurate record of the Customer's access of the Software and its users (including all Authorised Users).
9.2 If the Customer becomes aware of any misuse of the Software, Services any Third Party Services or the Documentation, or any security breach in connection with the Agreement that could compromise the security or integrity of the Software, Services, any Third Party Services or the Documentation or otherwise adversely affect Trelica, the Customer shall, at its expense, immediately notify Trelica and fully co-operate with Trelica to remedy the issue as soon as reasonably practicable.
10.1 In consideration for the rights granted under the Agreement and for the provision of the Services and Professional Services (if applicable), the Customer agrees to pay Trelica all Subscription Fees and, where applicable, Professional Services Fees (collectively, the “Fees”) detailed in any applicable Order Form within thirty (30) days of the Customer’s receipt of an invoice, unless otherwise stated in the Order Form.
10.2 Subscription Fees will be invoiced in accordance with the billing schedule set out in the Order Form.
10.3 Professional Services Fees will be invoiced in accordance with the Order Form.
10.4 All sums payable under the Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible and which shall be added to Trelica’s invoices at the appropriate rate.
10.5 The Customer shall provide to Trelica valid, up-to-date and complete credit card details or approved purchase order information acceptable to Trelica and any other relevant valid, up-to-date and complete contact and billing details. If the Customer provides credit card details to Trelica, the Customer hereby authorises Trelica to bill such credit card on the date of any invoice issued under the Agreement.
10.6 If Trelica has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Trelica:
10.6.1 Trelica may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Trelica shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.6.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank UK Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.7 The Customer will following any request by Trelica, provide Trelica with assistance in confirming the number of Applicable Accounts, including where appropriate, by confirming the same in writing, and/or providing Trelica with appropriate access to the Customer’s use of the Services.
10.8 If the Customer believes that Trelica has billed them incorrectly, the Customer must contact Trelica no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
11.1 The Customer acknowledges and agrees that Trelica and/or its licensors own all intellectual property rights in, or arising from the performance of, the Services, the Professional Services (if any) and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
11.2 Trelica confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.3 The Customer grants, and procures that each other Authorised User grants to Trelica a non assignable, non exclusive, world-wide, royalty free license to use any materials (including Customer Data) provided to Trelica or uploaded onto the Software solely in connection with the performance of, and to the extent required to perform, the Services during the Subscription Term.
11.4 The Customer may provide feedback to Trelica on its Services at any time. The Customer grants Trelica (for itself and all of its Authorised Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to the Customer, any Authorised User or other Customer personnel.
12.1 Each Party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
12.1.2 was in the other Party’s lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence.
12.2 Subject to clause 12.4, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information, for any purpose other than the implementation or performance of this Agreement.
12.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
12.5 The Customer acknowledges that details of the Services, the Professional Services, any Documentation, the Aggregate Data and the results of any performance tests of the Services, constitute Trelica’s Confidential Information.
12.6 Trelica acknowledges that Customer Data is the Confidential Information of the Customer.
12.7 The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
13.1 The Customer shall defend, indemnify and hold harmless Trelica against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
13.1.1 the Customer’s use of the Services, Professional Services and/or Documentation; and/or
13.1.2 any claim brought or threatened by an Authorised User against Trelica.
13.2 Trelica shall:
13.2.1 give the Customer prompt notice of any claim under clause 13.1; and
13.2.2 provide reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense.
13.3 Subject to clause 13.6, Trelica shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation (in each case excluding the Third Party Software and Third Party Services) in accordance with the Agreement and the User Terms infringes any registered patent, copyright, registered trade mark, or database right, in each case in the United Kingdom on the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
13.3.1 Trelica is given prompt notice of any such claim;
13.3.2 the Customer provides reasonable co-operation to Trelica in the defence and settlement of such claim, at Trelica’s expense;
13.3.3 the person against whom the claim is made does not make any admission of liability or otherwise prejudice the claim without the written consent of Trelica; and
13.3.4 Trelica is given sole authority to defend or settle the claim.
13.4 In the defence or settlement of any claim, Trelica may procure the right for the Customer to continue using the Services, or replace or modify the Services so that they become non-infringing.
13.5 If neither of the options set out in clause 13.4 can be accomplished on reasonable terms for Trelica, then Trelica may cease provision of the affected Services or require the Customer by notice to stop using the affected Services. Trelica will not be obliged to refund any Subscription Fees that have been paid for the period following the cessation of the use of the Services.
13.6 In no event shall Trelica, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
13.6.1 a modification of the Services or Documentation by anyone other than Trelica;
13.6.2 the Customer’s use of the Services or Documentation in a manner contrary to the Agreement (including without limitation as a result of any breach by the Customer of its obligations set out in clause 2 or clause 7) or the instructions given to the Customer by Trelica;
13.6.3 the Customer’s use of any Third Party Services or Third Party Software (whether or not in accordance with the terms of clause 7 and the remainder of the Agreement); or
13.6.4 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Trelica, the Party claiming infringement, or any appropriate authority.
13.7 The foregoing and clause 13.4 state the Customer’s sole and exclusive rights and remedies, and Trelica’s (including Trelica’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right, right of confidentiality or other intellectual property right.
14.1 Except as expressly and specifically provided in this Agreement:
14.1.1 without prejudice to clause 7, the Customer assumes sole responsibility for results obtained from the use of the Services, any Professional Services, any Third Party Services and the Documentation by or on behalf of the Customer (including all Authorised Users), and for conclusions drawn from such use;
14.1.2 Trelica shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Trelica by the Customer in connection with the Services, or any actions taken by Trelica at the Customer’s direction;
14.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
14.1.4 the Services and the Documentation are provided to the Customer on an “as is” basis.
14.2 Nothing in this Agreement excludes the liability of Trelica:
14.2.1 for death or personal injury caused by Trelica’s negligence;
14.2.2 for fraud or fraudulent misrepresentation; or
14.2.3 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
14.3 Subject to clause 14.1 and clause 14.2:
14.3.1 Trelica shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any (i) loss of profits, loss of business, loss of contracts, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss (in each case whether direct or indirect), or (ii) for any special, indirect or consequential loss, costs, damages, charges or expenses, in each case however arising under this Agreement; and
14.3.2 Subject to clause 14.3.3, Trelica’s total aggregate liability in contract (including in respect of the indemnity at clause 13.3), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising:
220.127.116.11 in connection with the performance or contemplated performance of the Agreement (other than the Professional Services) shall be limited to the total Subscription Fees paid under the applicable Order Form during the 12 months immediately preceding the date on which the claim arose; and/or
18.104.22.168 in connection with the performance or contemplated performance of Professional Services under the Agreement shall be limited to the total Professional Services Fees paid under the applicable Order Form in respect of such Professional Services.
14.3.3 Trelica’s total aggregate liability in contract (including in respect of the indemnity at clause 13.3), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of a Trial Subscription shall be limited to £1.00 (One Pound Sterling).
14.4 The Customer shall ensure that Authorised Users do not bring any claims arising out of or in connection with their use of the Services directly against Trelica.
15.1 Unless otherwise stated in an Order Form and subject to clause 3 and clause 15.2:
15.1.1 all subscriptions to the Services will automatically renew, on expiry of the Initial Subscription Term and on any Renewal Period, for a Renewal Period (or further Renewal Period as applicable) without the need to execute a renewal Order Form; and
15.1.2 the Subscription Rate during any automatic Renewal Period will remain the same as it was during the immediately preceding term unless otherwise agreed to between the Parties.
15.2 Following the Initial Subscription Term, either Party may terminate the Agreement at any time by giving the other party prior written notice of at least thirty (30) days, such notice to take effect on the day prior to the commencement of the following Renewal Period.
15.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other party:
15.3.1 if the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment;
15.3.2 if the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;
22.214.171.124 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;
126.96.36.199 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
188.8.131.52 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other party;
184.108.40.206 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;
220.127.116.11 the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
18.104.22.168 a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
22.214.171.124 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;
126.96.36.199 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 188.8.131.52 to clause 184.108.40.206 (inclusive); or
220.127.116.11 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
15.3.4 in accordance with clause 18.104.22.168; or
15.3.5 in respect of Trial Subscriptions in accordance with clause 3.1.2.
15.4 On termination of this Agreement for any reason:
15.4.1 any rights to use the Services and Documentation granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
15.4.2 Trelica will destroy or otherwise dispose of any of the personal data in the Customer Data in its possession in accordance with clause 6.12.5; and
15.4.3 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 the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
16.1 Neither Party will issue any press release or similar publicity regarding the Parties’ relationship under this Agreement without the other’s written approval.
16.2 Trelica may identify the Customer, by name and by logo, as a customer of the Services on Trelica’s website and other marketing materials, save that any use of the Customer’s logo will only be used in accordance with any guidelines that the Customer gives Trelica for the use of such logo.
16.3 Provided the Customer is satisfied with the Services, Trelica may develop a case study for public dissemination and marketing use by Trelica describing the benefits the Customer has derived from the Services. The Customer will reasonably cooperate with such case study. Publishing shall be subject to the Customer’s prior written approval, not to be unreasonably withheld.
Trelica shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Trelica or any other party), 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 or default of suppliers or sub-contractors.
If there is an inconsistency between any of the provisions in the MSA and the Order Form, the order of precedence shall be as follows: a) the Order Form; and then b) the MSA.
19.1 Trelica may modify the MSA from time to time by giving notice to the Customer through the Services, Trelica’s online user interfaces or through any other notice mechanism (including by email) to the Customer. Unless a shorter period is specified by Trelica (e.g. due to changes in the law, exigent circumstances or in order to meet the requirements of any of Trelica’s third party licensors (including without limitation any API Provider), the modifications become effective upon renewal of the then-current Renewal Period in the case of any modifications following the expiry of the Initial Subscription Term, or on the commencement of the first Renewal Period in the case of any modifications during the Initial Subscription Term, or on entry into a new Order Form. If Trelica specifies that the modifications to the MSA will take effect prior to the start of a Renewal Period and the Customer notifies Trelica in writing by email to [email protected] of its objection to the modifications within thirty (30) days after the date of such notice, Trelica (at its option and as the Customer’s exclusive remedy) will either:
19.1.1 permit the Customer to continue under the existing version of the MSA until the next Renewal Period (after which time the modified Agreement will go into effect); or
19.1.2 allow the Customer to terminate the Agreement without refund.
19.2 Subject to clause 19.1, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
22.2 If any provision or part-provision of this Agreement is deemed deleted under clause 22.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23.1 The Agreement, specifically the MSA and any associated Order Forms, constitute the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2 Each Party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
23.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
24.1 The Customer shall not, without the prior written consent of Trelica, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
24.2 Trelica may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
Nothing in the Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
The Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under the Agreement to Trelica shall be in writing and shall be delivered by email to [email protected]. Any notice required to be given under the Agreement to the Customer shall be in writing and delivered to the email address set out in the Order Form as the address for notices or via the Services.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).