1 Definitions 

1.1 Except to the extent expressly provided otherwise, in this Agreement: 

“Account” means an account enabling a person to access and use the Nalytics SAR Service. 

“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time. 

“Business Day” means any weekday other than a bank or public holiday in England. 

“Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day. 

“Charges” means the following amounts:  (a) the amounts specified in Schedule 1 part 1 (Nalytics SAR Service particulars); and  (b) such amounts as may be agreed in writing by the parties from time to time. 

“Controller” means the Customer  “Customer Confidential Information” means:  (a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:  (i) was marked as “confidential”; or  (ii) should have been reasonably understood by the Provider to be confidential. 

“Data Protection Legislation” means (i) Regulation (EU) 2016/679 (“GDPR”); (ii) the Data Protection Act 2018 and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any subordinate or replacement legislation thereof. 

“Data Subjects” means Service Users and employees of the Customer. 

“Delivery of Service” means the date which Nalytics SAR Service is made available to the Customer 

“Documentation” means the Online Guide which is available to the Customer within the Nalytics SAR Service. 

“Effective Date” means the date of execution of this Agreement. 

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars; 

“Nalytics SAR Service” means Nalytics SAR, as specified in the Nalytics SAR Service Specification, which will be made available by the Provider to the Customer in accordance with this Agreement. 

“Nalytics SAR Service Defect” means a defect, error or bug in the Nalytics SAR Service that has a material adverse effect on its appearance, operation, functionality or performance, but excluding:  (a) any act or omission of the Customer or any person authorised by the Customer to use the Nalytics SAR Service.  (b) any use of the Nalytics SAR Service contrary to the Documentation, whether by the Customer or by any person authorised by the Customer.  (c) an incompatibility between the Nalytics SAR Service and any other program or software not specified as compatible in the Nalytics SAR Service Specification. 

“Nalytics SAR Service Specification” means the specification for the Nalytics SAR Service set out in Part 2 of Schedule 1 (Nalytics SAR Service particulars); 

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); 

“Maintenance Services” means the general maintenance of the Nalytics SAR Service, and the application of Updates 

“Permitted Purpose” means the purpose for which the Nalytics SAR Service is intended. 

“Personal Data” means contact information such as address, email, telephone numbers, IP addresses and any other data relating to an identifiable individual including special category data relating to health information and criminal history. 

“Personal Data Breach” has the meaning given to it in the GDPR. 

“Platform” means the platform managed by the Provider to provide the Nalytics SAR Service. 

“Processing/Process” means the provision of a secure Case Management system, hosted by the Processor to the Customer and its Service Users 

“Processor” means the Provider. 

“Schedule” means any schedule attached to main body of this Agreement. 

“Service User” means the recipient of the service being delivered by the Customer via Nalytics SAR 

“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Nalytics SAR Service. 

“Supported Web Browser” means those versions of browsers supported by their respective suppliers such as Windows Internet Explorer; Mozilla Firefox; Apple Safari and Google Chrome. 

“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2. 

“Update” means a hotfix, patch or version update to the Nalytics SAR Service

2. Term

2.1 This Agreement shall come into force upon the Effective Date.

2.2 This Agreement shall continue in force as detailed in Schedule 1 Part 1, subject to termination in accordance with Clause 13.

3. Nalytics SAR Service

3.1 The Provider shall install the Nalytics SAR Service onto the Platform. The Provider warrants that all components are either open source (with no sub-licensing restrictions) or Nalanda Technology proprietary.

3.2 The Provider hereby grants to the Customer a worldwide and irrevocable license to use the Nalytics SAR Service (in accordance with this Agreement, including the Nalytics SAR Service Specification) by means of a Supported Web Browser during the Term.

3.3 The license granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

• (a) The Provider shall provide the Customer with an Administrator Account to enable them to create and maintain Accounts for their licensed user base.
• (b) The Provider reserves the right to review usage reports and retrospectively claim revenues for users above the licensed numbers seen to have been using the Nalytics SAR Service.
• (c) The Customer has no right to access the software code (including object code, intermediate code and source code) on the Platform, either during or after the Term. This is, and will remain, the intellectual property of the Provider or relevant third party (as applicable).
• (d) The Provider reserves the right to increase the annual subscription, but any such increase will be limited to the aggregate retail price index percentage figure.

4. Maintenance Services

4.1 Updates to the Nalytics SAR Service will be available at regular intervals and at least every 6-months. The Customer is eligible to receive such updates which will be installed by the Provider without charge.

4.2 The Provider shall give to the Customer written notice of the availability of updates to the Nalytics SAR Service.

5. Support Services

5.1 The Provider shall provide Support Services to the Customer during the Term.

5.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions in Service Level Agreement held in the support portal.

5.3 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

6. No Assignment of Intellectual Property Rights

6.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

7. Provider’s Confidentiality Obligations

7.1 The Provider must:

• (a) Keep the Customer Confidential Information strictly confidential.
• (b) Not disclose the Customer Confidential Information to any person without the Customer’s prior written consent.
• (c) Use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care.

7.2 Notwithstanding Clause 7.1, the Provider may disclose the Customer Confidential Information to the Provider’s employees and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

7.3 This Clause 7 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

• (a) Is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality.
• (b) Is or becomes publicly known through no act or default of the Provider.

7.4 This Clause 7 shall survive termination or expiry of this Agreement and shall continue in force indefinitely.

7.5 Following termination or expiry of this Agreement, at the Customer’s option, the Provider shall return to the Customer or securely destroy all Customer Confidential Data in its possession.

8. Data Protection

8.1 Each party confirms and undertakes that it does and will comply with the Data Protection Legislation.

8.2 Where under this Agreement one party is acting as a Processor and the other party is acting as Controller, the Processor shall:

• a) Only process the Data in the United Kingdom with no transfer of the Data outside of the United Kingdom.
• b) Ensure that all employees and other representatives accessing the Data are:
  • (i) Aware of the terms of this Agreement,
  • (ii) Have received comprehensive training on Data Protection Laws and related good practice, and
  • (iii) Are bound by a commitment of confidentiality;
• c) Agree to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
• d) Not involve any third party in the processing of the Data without the prior written consent of the Controller. Such consent may be withheld without reason. If consent is given, a data processing agreement will be required.
• e) Taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures, in so far as this is possible, for the fulfilment of the Controller’s obligation to respond to requests from Data Subjects exercising their rights laid down in Chapter III of GDPR – rights to erasure, rectification, access, restriction, portability, object and right not to be subject to automated decision making.
• f) Assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR – security, notification of data breaches, communication of data breaches to Data Subjects, data protection impact assessments and when necessary consultation with the ICO, taking into account the nature of the Processing and the information available to the Processor.
• g) On the Controller’s written instruction, safely delete or return the Data at any time. Where the Processor is to delete the Data, deletion shall include destruction of all existing copies unless otherwise a legal requirement to retain the Data. Where there is a legal requirement, the Processor will prior to entering into this Agreement confirm such an obligation in writing to the Controller. Upon request by the Controller, the Processor shall provide certification or written confirmation of destruction of all Data.
• h) Make immediately available to the Controller all information necessary to demonstrate compliance with the obligations laid down under this Agreement and allow for and contribute to any audits, inspections or other verification exercises required by the Controller from time to time.
• i) Make arrangements relating to the secure transfer of the Data from the Controller to the Processor.
• j) Maintain the integrity of the Data, without alteration, ensuring that the Data can be separated from any other information created.
• k) Immediately contact the Controller if there is any personal data breach or incident where the Data may have been compromised.

8.3 All data held within the Nalytics SAR platform remains the property of the customer and at termination of the agreement all customer data will be returned to the Customer in an agreed format.

9. Warranties

9.1 The Provider warrants to the Customer that the Nalytics SAR Service, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.

9.2 The Provider warrants to the Customer that the Nalytics SAR Service, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person under any applicable law.

9.3 The Provider warrants that it has the right to grant the licence in Clause 3.2.

9.4 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

9.5 The Provider warrants that it will provide all of the services under this Agreement with reasonable skill and care.

10. Acknowledgements and Warranty Limitations

10.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Nalytics SAR Service will be wholly free from defects, errors and bugs save that the Provider will use reasonable endeavours to remedy any Nalytics SAR Service Defects in a subsequent release.

10.2 The Customer acknowledges that the Nalytics SAR Service is designed to be compatible only with that software and those systems specified as compatible in the Nalytics SAR Service Specification; and the Provider does not warrant or represent that the Nalytics SAR Service will be compatible with any other software or systems.

11. Limitations and Exclusions of Liability

11.1 Nothing in this Agreement will:

• (a) Limit or exclude any liability for death or personal injury resulting from negligence.
• (b) Limit or exclude any liability for fraud or fraudulent misrepresentation.
• (c) Limit any liabilities in any way that is not permitted under applicable law.
• (d) Exclude any liabilities that may not be excluded under applicable law.

11.2 The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this Agreement:

• (a) Are subject to Clause 11.1; and
• (b) Govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

11.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event or of any loss of profits or anticipated savings.

12. Force Majeure Event

12.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

12.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

• (a) Promptly notify the other; and
• (b) Inform the other of the period for which it is estimated that such failure or delay will continue.

12.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

13. Termination

13.1 The Nalytics SAR Service is provided on an annual subscription and as such the Agreement will automatically renew at the end of the Term, unless either party gives notice 3 months prior to the end of the Term.

13.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

14. General

14.1 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

14.2 This Agreement shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England shall 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).

14.3 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.

14.4 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.

14.5 This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter.

14.6 Each party acknowledges that it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) other than as expressly set out in this Agreement.

14.7 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.

14.8 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

14.9 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

14.10 This Agreement shall remain confidential between the Parties and details of this Agreement shall not be disclosed to any other party without prior written agreement from both Parties.