September 2022

Codat Master Services Agreement - Enterprise

This Codat Master Services Agreement (“Agreement”) is made between the Codat entity listed at clause 12.8 below (“Codat”) and the Client identified on the Order Form (“Client”), together referred to as the “parties” and each individually as a “party.” Specific services terms, product details and any applicable license and/or subscription terms will be set forth in the applicable Schedule(s), Order Form(s) and SOW(s), each of which become binding on the Parties and incorporated into this Agreement upon execution of an Order Form and/or SOW. Each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:

  1. the Order Form and/or SOW;
  2. the Schedule(s); and
  3. this Master Services Agreement.

In the event of a conflict, the order of precedence is as set out above in descending order of control.

Agreement Version: v2.0 dated 5 September 2022.

Each party agrees that the following terms and conditions govern each Order Form and/or SOW that references this Agreement:

1. DEFINITIONS

Affiliate: any entity that controls, is controlled by or is under common control with a party. “Control”, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Authorised Users: those Client personnel who are authorised to access the Codat Products.

Business Day: shall have the meaning set out in clause 12.8.

Client Default: as defined in clause 3.2.

Codat Product(s): the Codat Product(s) as set out in the relevant Order Form, as further described at codat.io/codat-order-form/.

Codat Services: where relevant, the services performed by Codat to the Client under this Agreement, as further detailed in a SOW.

Company (or Companies): companies who make their Company Data available to the Client on the Codat Product(s) and, an “active” Company is a Company who has completed at least one data synchronisation in a given month.

Company Data: data uploaded with the Company’s permission to the Codat Product containing information relating to the Company’s business.

Confidential Information: as defined in clause 8.1.

Consumer Price Index: if the Client is domiciled (incorporated) in (a) UK or ROW (excluding USA), the Consumer Price Index published by the Office for National Statistics; or (b) USA, the United States Consumer Price Index published by the U.S. Bureau of Labor Statistics.

Client’s Products: the product which the Company wishes to procure from the Client.

Disclosing Party: as defined in clause 8.1.

Fees: the Platform Fees, Unit Fees and the Service Fees.

Initial Term: as defined in clause 7.1.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Invoice Period: each period of one month, the first of which will begin on the Initial Order Start Date, or as otherwise set out in the Order Form.

Platform Fees: the fees payable by the Client for access to and use of the Codat Product(s), as set out in the Order Form.

Privacy Notice: Codat’s privacy notice located at codat.io/privacy-policy.

Receiving Party: as defined in clause 8.1.

Renewal Term: as defined in clause 7.1.

Service Credits: means a service credit payable by Codat to the Client where the Codat Products fail to meet the Service Levels, as set out in paragraph ‎2 of Schedule 1.

Service Fees: where relevant, the fees payable by the Client for the Codat Services, as set out in the relevant SOW.

Service Levels: the periods of uptime set out in paragraph ‎2 of Schedule 1.

Unit Fees: the fee payable by the Client per active Company, per month, as set out in the Order Form.

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 Codat Product experience, including worms, trojan horses, viruses and other similar things or devices.

2. USE OF PRODUCT AND SERVICES

2.1 Licence. Codat will provide the Codat Products and/or Codat Services to Client as set out in an Order Form and/or SOW. Subject to the terms of this Agreement, Codat grants to Client a non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to: (a) use the Codat Products solely for the purpose of accessing the Company Data; and (b) use the Codat Products to access the Company Data in the format made available by Codat from time to time solely for the internal purposes of: (i) assessing whether to make the Client’s Products available to the particular Company; and/or (ii) managing the provisions of the Client’s Products to the particular Company. For the avoidance of doubt, all licences granted under an Order Form will begin on the Initial Order Start Date specified, for both testing and production purposes.

2.2 Security. Client undertakes that it shall: (a) not allow the Codat Products to be accessed or used by anyone other than Authorised Users; and (b) procure that each Authorised User keep secure their login credentials used to access the Codat Products and not share them with any other person. Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Codat Products and, in the event of any such unauthorised access or use, promptly notify Codat.

2.3 Restrictions. Client shall not, and shall not permit its Authorised Users to do the following with respect to the Codat Products:

(a) access, store, distribute or transmit any Virus, or any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitate illegal activity; (iii) depict sexually explicit images; (iv) promote unlawful violence; (v) are discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) in a manner that is otherwise illegal or cause damage or injury to any person or property; and Codat reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to and remove any material that breaches the provisions of this clause;

(b) except as may be allowed by any applicable law which is incapable of exclusion or by agreement between the parties (including as expressly permitted under this Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Codat Products in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Codat Products;

(c) access all or any part of Codat Products in order to build a product or service which competes with the Codat Products and/or Codat Services;

(d) use the Codat Products to provide services to third parties which are not consistent with clause 2.1 of this Agreement;

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Codat Products available to any third party, or attempt to obtain, or assist third parties in obtaining, access to the Codat Products, other than as provided under this Agreement.

2.4 Services. Upon Client’s request for Codat Services, the parties will agree on and execute a SOW, setting forth each party’s tasks, the deliverables, the Service Fees and any other terms deemed necessary by the parties. Codat shall perform the Codat Services in accordance with this Agreement and any applicable SOW entered into between the parties with respect thereto. Codat will provide the Codat Services using reasonable care and skill.

2.5 Support. Client may contact Codat with technical or other questions with respect to the Codat Product and/or Codat Services and to report Codat Product outages or failures. Codat will provide a representative or help desk to answer technical support and other questions from the Client and its Authorised Users in accordance with the response times set out in Schedule 1. Client acknowledges and agrees that the Client shall be responsible for providing first level support to Companies provided that the Client will be entitled to raise issues with Codat which are unable to be resolved by the Client.

2.6 Service Levels. Codat shall ensure the Codat Product(s) meet the Service Levels. Where the Codat Product(s) fails to meet the Service Levels the Client shall be entitled to Service Credits. Codat shall apply the Service Credits as a discount against the Fees in the next invoice issued in accordance with clause ‎5. Service Credits shall be the Client’s sole and exclusive remedy in respect of a failure of the Codat Product(s) to meet the Service Levels. Codat shall use reasonable endeavours to perform any planned maintenance at a time when it is likely to cause least impact to the business of the Client.

3. CLIENT OBLIGATIONS

3.1 Client Obligations. Client shall:

(a) procure that the Company, (i) authorises the Company Data to be uploaded to the Codat Product(s) and used by Client and Codat as envisaged under this Agreement, (ii) acknowledges and undertakes that any Company Data uploaded to the Codat Products shall be true and accurate, to the best of its knowledge and is not defamatory, discriminatory, offensive, obscene, indecent or otherwise unlawful or objectionable;

(b) co-operate with Codat in all matters relating to the Codat Products and/or Codat Services, which shall include providing Codat with such information and materials as Codat may reasonably require and ensure that such information is accurate in all material respects;

(c) not use the Codat Products in a manner that in Codat’s reasonable opinion exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement;

(d) obtain all licences, permissions and consents which may be required by law or contract to enable Codat to use the Company Data as envisaged by this Agreement; and

(e) be solely responsible for procuring and maintaining its network connections and telecommunications links and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

3.2 Client Default. If Codat’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (a “Client Default“):

(a) Codat shall without limiting its other rights or remedies have the right to suspend access to the Codat Products and performance of the Codat Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Codat’s performance of any of its obligations;

(b) Codat shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Codat’s failure or delay to perform any of its obligations as set out in this Agreement; and

(c) the Client shall reimburse Codat on written demand for any costs or losses sustained or incurred by Codat arising from the Client Default.

4. OWNERSHIP

4.1 Codat Products and Services. All Intellectual Property Rights in or arising out of or in connection with the Codat Services and/or the Codat Products shall be owned by Codat, including any Intellectual Property Rights in and to the format and structure of the Company Data or any Company Data treated by Codat for Codat’s use as described in this Agreement. All software and algorithms used in connection with the Codat Services and/or the Codat Products are the property of Codat or their software partners and are protected by copyright laws. Codat and the other logos shown on the Codat Products are trademarks, service marks and/or trading names of Codat or its partners and protected by applicable intellectual property legislation.

4.2 Use of Company Data. Codat may use Company Data: (i) to provide the Codat Products and Codat Services under this Agreement; (ii) to monitor, detect, prevent, reduce, or otherwise address fraud, risk, security, or technical issues; (iii) to enhance or improve the Codat Products; (iv) as required by applicable law; or (vi) as otherwise permitted under this Agreement.  Codat acknowledges and agrees that it has no rights to and in the Company Data save as otherwise set out in this Agreement.

4.3 Third Party Licences. Client is solely responsible for ensuring all licenses necessary to use the third party software programs used by each Company are obtained, where such licenses are necessary to use the Codat Products and to access and use Company Data.  Any fees charged by third parties in respect of such licences are the responsibility of Client.

4.4 Injunctive Relief and Indemnity. The Client acknowledges that civil and criminal penalties may be incurred in the event of any infringement of the copyright and/or other rights in relation to the Codat Products and the format and structure of the Company Data and that any such infringement by the Client may result in incalculable damage and/or loss to Codat, and accordingly the Client agrees that, in addition to any other right or remedy of Codat, Codat shall be entitled to seek immediate injunctive relief to restrain any actual or apprehended infringement thereof. The Client undertakes to indemnify Codat in full against all direct and reasonably foreseeable loss and damage (together with any reasonable costs and expenses thereto) incurred by Codat by reason of any such infringement by the Client.

5. FEES AND PAYMENT

5.1 Fees. Client will pay all Fees specified in an Order Form or SOW.

5.2 Fee Increase. In the event this Agreement is renewed in accordance with clause 7.1 (below), Codat may, increase the Platform Fee and the Unit Fees on an annual basis with effect from each anniversary of the Initial Order Start Date in line with the percentage increase in the Consumer Price Index in the preceding 12-month period. The increase shall take effect at the beginning of the first day of the relevant Renewal Term and shall be based on the latest available figure for the percentage increase in the Consumer Price Index at the beginning of the last month of the previous Initial Term or Renewal Term (as relevant).

5.3 Invoicing. Codat shall invoice the Client in advance for the Platform Fees, either annually or in accordance with the applicable Order Form, if different. Unit Fees  shall be invoiced to the Client monthly in arrears. Service Fees (if relevant) shall be invoiced to Client as set out in the SOW. Unless otherwise stated in the Order Form or SOW, the first invoice in relation to an Order Form or SOW will be due on receipt, with subsequent invoices due net 30 days from the invoice date.

5.4 Offset and Interest. Client shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If any invoiced amount is not received by Codat by the due date, then without limiting Codat’s rights or remedies Client shall pay interest on the overdue amount at the rate of a) 4% per annum above the Bank of England’s base rate from time to time if the Codat contracting entity as set out in clause 12.8 is Codat Limited; or b) 12% per annum if the Codat contracting entity as set out in clause 12.8 is Codat Inc.

5.5 Taxes. Fees and other charges do not include any sales, use, value added, or similar taxes, and Client will pay such applicable taxes imposed by federal, state, or other taxing authorities either directly or through Codat collection (stated as separate invoice items) as legally required as a result of the provision of the Codat Products and/or Codat Services to Client under this Agreement; provided, however, that Client shall have no obligation to pay any taxes or amounts (a) that are based upon the net income of Codat, (b) that constitute franchise or business privilege taxes assessed against Codat, or (c) that are personal property taxes assessed or assessable against Codat.

6. SECURITY AND DATA

6.1 Codat as a Controller. Where Codat is a Controller (as defined in Schedule 2) in relation to personal data under this Agreement, Codat may use Personal Data in the manner set out in Codat’s Privacy Notice and as further set out in this Agreement.

6.2 Use of Company Data. Companies will place Company Data on to the Codat Products and such Company Data shall be accessible to the Client. Codat will use commercially reasonable efforts to refrain from accessing, using or any Personal Data other than as necessary to provide the Company Data for use by Client and Companies in accordance with this Agreement. To the extent any Company Data does constitute Personal Data, the terms set out in Schedule 2 shall apply.

6.3 Data Permissions. The Client is required to enter into direct contractual relationships with each Company to obtain permission to access and use of Company Data on the Codat Product(s) or by means of the Codat Services.  Client agrees to procure from the Company (where required by law) that (i) Codat shall have the right to store, use, reformat and distribute and otherwise Process such Company Data through the Codat Products or by means of the Codat Services as required under this Agreement; and (ii) that the Company provides the Company Data, or procuring that such instructions as are appropriate are given to associated third parties to deliver Company Data, or arrange for the collection of, such Company Data by Codat in a description and format that is suitable for the Codat Products and the provision of the Codat Services.

6.4 Client Products. Client acknowledges and agrees that it is solely responsible for the products and services it provides to Companies and its protection of the Company Data thereto, and any losses or liabilities arising out of the foregoing.

6.5 Data Consents. The Client warrants that, where required by law or contract with any third party, the Client has separately obtained all necessary Company consents in writing relating to the Company Data being stored and/or processed by Codat under this Agreement. Client will provide written copies of Company consent to Codat upon Codat’s reasonable request.

6.6 Security Standards. Client acknowledges that Codat is regularly audited against ISO 27001 standards by independent third party auditors.  Upon reasonable request, Codat shall supply a summary copy of its audit report(s) to Client, which shall be subject to the confidentiality provisions of this Agreement.

7. TERM AND TERMINATION

7.1 Term. This Agreement commences on the date Client first accepts it and continues until all Order Forms and SOWs hereunder have expired or have been terminated. The initial term of each licence shall begin on the Initial Order Start Date and end on the Initial Order End Date as set out in the applicable Order Form (“Initial Term”). After the Initial Term, an Order Form shall automatically renew for subsequent periods of twelve months (each, a “Renewal Term”) with Platform Fee and Unit Fees as at the Initial Order End Date (subject to any adjustments pursuant to clause 5.2) unless either party gives the other written notice of termination at least 30 (thirty) days prior to the expiration of the current term.  Termination or expiration of any Order Form or SOW shall leave other Order Forms or SOWs unaffected.

7.2 Suspension. Codat reserves the right to suspend access to the Codat Products in the event that (a) all applicable Companies withdraw their authorisation for Company Data to be uploaded to the Codat Products; and/or (b) the Client is in breach of this Agreement, and Codat accepts no liability to Company(s) and/or the Client and/or to any other party arising out of the suspension of access to the Codat Products.

7.3 Termination. A party may terminate this Agreement by given written notice (i) upon 20 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, receivership or assignment for the benefit of creditors. Without limiting its other rights or remedies, Codat may terminate this Agreement with immediate effect by giving written notice to Client if Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified to make such payment.

7.4 Refund or Payment upon Termination.  If this Agreement is terminated by Client in accordance with clause 7.3 above, Codat will refund Client any prepaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Codat in accordance with clause 7.3 above, Client will pay any unpaid Fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Client of its obligation to pay any Fees payable to Codat for the period prior to the effective date of termination.

7.5 Consequences of Termination. On expiry or termination of this Agreement for any reason: (i) Client shall immediately pay to Codat all of the Client’s outstanding unpaid Fees and any interest; (ii) Client shall immediately cease using the Codat Products and Codat may terminate all Authorised Users’ accounts; (iii) Client’s licence to use the Codat Products under clause 2.1 shall end; (iv) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; (v) clauses which expressly or by implication survive termination shall continue in full force and effect (which shall for the avoidance of doubt include clauses ‎8 and ‎11).

7.6 Deletion of Data. Codat shall afford the Client 5 Business Days following the date of termination or expiry of this Agreement within which the Client may download/export the Company Data, following which time Codat shall delete the Company Data.

8. CONFIDENTIALITY

8.1 Definition of Confidential Information.Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential. Confidential Information does not include information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

8.2 Restricted use and non-disclosure. Neither party shall use the other party’s Confidential Information for any purpose other than as permitted under this Agreement. Each party undertakes that it shall treat all Confidential Information as strictly confidential and not at any time disclose to any person any Confidential Information of the other party, except as permitted by this clause ‎8.

8.3 Permitted disclosures. Each party may disclose the other party’s Confidential Information:

(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause ‎8;

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority but (to the extent permitted by applicable law or the requesting authority) only after the Disclosing Party has been so notified promptly in writing and has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure;

(c) if the Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; and

(d) with the prior written approval of the other party.

8.4 Injunctive Relief. Each party acknowledges and agrees that irreparable injury to the other party may result in the event that the confidentiality obligations contained in this clause are violated and that the remedy at law for the breach of such obligations may be inadequate. Therefore, if either party engages in any act in violation of the provisions of this clause, the other party shall be entitled, in addition to such other remedies and damages as may be available to it by law or under this Agreement, to seek injunctive relief to enforce the provisions of this clause. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to the Disclosing Party.

9. WARRANTIES AND DISCLAIMERS

9.1 THE CODAT SERVICES, CODAT PRODUCTS AND COMPANY DATA ARE PROVIDED BY CODAT TO CLIENT ON AN “AS IS”, “AS AVAILABLE” BASIS AND CODAT DOES NOT GIVE OR MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE CODAT SERVICES, THE CODAT PRODUCTS OR THE COMPANY DATA, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR CORRECTNESS.  CODAT DOES NOT WARRANT THAT CLIENT’S ACCESS TO THE CODAT PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.  CODAT IS NOT RESPONSIBLE FOR ANY FAILURE TO ACCESS THE CODAT PRODUCTS OR THE COMPANY DATA THROUGH THE CODAT PRODUCTS THAT IS CAUSED BY CODAT, CLIENT, A COMPANY, THE INTERNET OR ANY THIRD PARTY OR ANY THIRD PARTY SOFTWARE, TOOL OR APPLICATION.

9.2 Codat does not vet, endorse or recommend any Companies or the Client’s Products or make any warranties or representations in respect of any Company or the Client’s Products.

10. INDEMNITY

10.1 Client Indemnity. Client shall defend, indemnify and hold harmless Codat, its officers, directors and employees 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 the Client’s use of the Codat Products, provided that (i) the Client is given prompt notice of any such claim; (ii) Codat provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and (iii) the Client is given sole authority to defend or settle the claim.

10.2 Codat Indemnity. Codat shall defend the Client, its officers, directors and employees against any claim that the Codat Products (excluding Company Data) infringe any patent effective as of the date of this Agreement, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that, (i) Codat is given prompt notice of any such claim; (ii) the Client provides reasonable co-operation to Codat in the defence and settlement of such claim, at Codat’s expense; and (iii) Codat is given sole authority to defend or settle the claim. In no event shall Codat indemnify the Client under this clause to the extent that the alleged infringement is based on (x) a modification of the Codat Products by anyone other than Codat; or (y) the Client’s use of the Codat Products in a manner contrary to the instructions given to the Client by Codat; or (z) the Client’s use of the Codat Products after notice of the alleged or actual infringement from Codat or any appropriate authority.

10.3 Remedies If any item forming part of the Codat Products becomes, or in Codat’s reasonable opinion is likely to become, subject to an infringement claim or proceeding, Codat may procure the right for the Client to continue using the Codat Products, replace or modify the Codat Products so that it becomes non-infringing or, if such remedies are not reasonably available, remove the infringing item from the scope of the Codat Products.

11.   LIMITATION OF LIABILITY

11.1 Nothing in this Agreement shall limit or exclude either party’s liability for (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.

11.2 Subject to clause 11.1, neither party shall be liable to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with this Agreement for loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss or damage to goodwill or reputation; and any indirect or consequential loss.

11.3 Subject to clause 11.1, Codat’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or in connection with the Agreement shall be limited as follows: a) if Codat Limited is the Codat contracting party, the greater of £50,000 or the total Platform Fees paid under this Agreement in the 12 months preceding the date of such a breach; and b) if Codat Inc is the Codat contracting party, the greater of USD50,000 or the total Platform Fees paid under this Agreement in the 12 months preceding the date of such a breach.

11.4 Codat cannot be held responsible for any delays that result from the failure of any Company to deliver or provide access to Company Data or the failure of the Client to access, use or interpret any data on the Codat Products. The Client is responsible for adequate protection and back up of data and/or equipment and for undertaking reasonable and appropriate precautions to scan for computer viruses, or other destructive properties. Codat makes no representations or warranties regarding the accuracy, functionality or performance of any third party software that may be used by the Client or any Company that the Client transacts with in connection with the Services.

11.5 Codat has no liability or responsibility of any kind for the accuracy or content of any of the Company Data and/or Personal Data or for any loss or damage suffered by the Client resulting from the Client’s use or disclosure of Company Data. Client assumes sole responsibility for results obtained from the use of the Codat Products, and for conclusions drawn from such use.

11.6 Codat has no relationship with or obligation to, and accepts no liability arising out of the Codat Products and the Codat Services in relation to, to any party other than Client. The Client acknowledges and agrees that it is solely responsible for its use of the Codat Products and the Company Data.

11.7 Where the governing law of this Agreement as set out in clause 12.8 is England, the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.

12. GENERAL

12.1 Relationship. Nothing in this Agreement is intended to or shall give rise to any relationship of partnership, joint venture or profit sharing in the nature of partnership between the parties. No one other than a party to this Agreement shall have any right to enforce any of its terms.

12.2 Force majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including war, riot, civil commotion or terrorist attacks; fires, floods or storms; acts of God; and strikes, lockouts and other industrial disputes.

12.3 Assignment and other dealings. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Codat may assign this Agreement in its entirety (including all Order Forms), without Client’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

12.4 Entire agreement. This Agreement constitutes 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. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

12.5 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

12.7 Severance. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.

12.8 Governing law, jurisdiction and notices. The Codat entity entering into this Agreement, the address to which Client should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Client is domiciled.

If the Client is domiciled (incorporated) in:Codat entityGoverning lawCourts with exclusive jurisdictionDefinition of “Business Day”
UK or ROW (excluding USA)Codat Limited, a company registered in England and Wales (number: 10480375), with its registered office at 301 Ink Rooms, 28 Easton Street, London, England, WC1X 0BEThe laws of EnglandThe courts of EnglandA day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
USACodat Inc, a company incorporated in Delaware with its principle place of business being 156 Fifth Avenue, 4th Floor, New York, NY 10010  The laws of DelawareThe courts of New York, New YorkA day on which the Federal Reserve Bank of New York is open for business.

12.9 Manner of giving notice. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.8; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email to [email protected], one Business Day after transmission.

12.10    The following clauses shall apply to Clients domiciled in the USA:

12.10.1 Jury Waiver.  WITH RESPECT TO ANY CLAIM OR DISPUTE UNDER THIS AGREEMENT, THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF ANY CLAIM OR DISPUTE ARISING UNDER THIS AGREEMENT.

12.10.2 Non-Discrimination.  To the extent applicable or not exempt, Client and Codat shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that Client and Codat take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

Schedule 1 – Service Levels and Support

  1. Definitions. For the purposes of this Schedule, the following definitions shall apply:

Actual Availability: is the time (in minutes) in an Invoice Period that the Codat Product (set out in the relevant Order Form) is available, but excludes periods of unavailability of the Codat Products as a result of unavailability of External Third Parties, or scheduled and notified downtime. For the avoidance of doubt, Codat has no liability for the uptime or availability of third party software integrations connected via the Codat Products, and “Integrations” on the Status Page is provided for information only.

Business Hours: if the Client is domiciled (incorporated) in (a) UK or ROW (excluding USA), 9:00am to 5:00 pm (London, UK time) on a Business Day; or (b) USA, 9:00 am to 5:00 pm (Mountain time – Denver, CO) on a Business Day.

External Third Parties: means Codat’s cloud service provider (currently Microsoft Azure) and Codat’s transactional email provider (currently Mailgun).

Feature Requests: means Client requests for new Codat Product features, such as new integrations, new data types and new or missing fields.

Invoice Period Availability: is the time (in minutes) in an Invoice Period during Business Hours.

Uptime: is the period of time in an Invoice Period that the Codat Product (set out in the Order Form) is available (as detailed on the Status Page), calculated as follows:

Severity 1: means critical issues where the Codat Products have ceased to function and are inaccessible for the Client.

Severity 2: means an issue where the Codat Product(s) cause a serious adverse impact to the Client’s operation, such as the data for a Company is mapped incorrectly.

Severity 3: means any of the following: (i) a new Company is unable to connect via a Codat Product for the first time and no data has been synchronised; (ii) some data sets for a Company are missing and/or unable to be synchronised; or (iii) a company which was previously connected via a Codat Product is unable to synchronise new data.

Severity 4: means any other issue reported by a Client which does not fall into any other severity categories.

Status Page: means https://status.codat.io.

Support: means the Codat support team, who provide support and assistance to Clients in relation to the Codat Products, in accordance with this Schedule and clause 2.5 of this Agreement.

Support Hours: 9.00 am (London, UK time) to 5.00 pm (Denver, CO time) on a Business Day.

2. Codat Product Availability

2.1 Client shall be entitled to the following Service Credits where the Uptime in an Invoice Period falls below the following levels:

UPTIMEService Credit (as % of the Platform Fee apportioned to the relevant Invoice Period)
Below 99%10%
Below 95%30%
Below 90%100%

2.2 If Client believes they are entitled to Service Credits in accordance with this Schedule, Client must notify Codat within 30 days from the end of the relevant Invoice Period. Codat shall review Client’s request against Uptime and if applicable, apply the Service Credits as a discount against the Fees in the next invoice issued to Client.

3. Support / Issue Response Time

3.1 The Client shall report any support, bug or other technical issue to Codat by emailing details of the issue to [email protected]

3.2 For the avoidance of doubt, Feature Requests are not covered by this section, and should be raised by Client via Productboard (portal.productboard.com/codat).

3.3 The Client acknowledges that Support is provided from both UK and US Support teams and that Company Data may be accessed by either location for the purpose of providing support in accordance with this section.

Enterprise

For all Severity 1 and 2 issues, this should feature in the subject of the email sent to Support. Codat will provide an initial response in the following timeframes:

This paragraph shall not apply in cases where Codat can reasonably evidence that the issue was caused by an External Third Party or by a Client Default.

Schedule 2 – Data Processing Addendum

  1. Definitions. The following definitions will apply in this Schedule and the Agreement:

Applicable Data Protection Law: means as relevant, a) the UK GDPR, Data Protection Act 2018 and the GDPR, or b) the Gramm Leach Bliley Act

Controller: shall have the meaning given in the UK GDPR and the GDPR.

Data: as defined in paragraph 2 of this Schedule 2.

Data Subject: shall have the meaning given in the UK GDPR and the GDPR.

EEA: the European Economic Area.

EU Model Clauses: the controller-to-processor standard contractual clauses approved by the European Commission under Decision 2021/914.

GDPR: EU General Data Protection Regulation (Regulation 2016/679).

Permitted Purpose: has the meaning given to it paragraph 2 of this Schedule 2.

Personal Data: shall have the meaning given in Applicable Data Protection Law and for the purposes of this Agreement shall refer to Personal Data only Processed in relation to this Agreement.

Process / Processing / Processor: shall have the meaning given in the UK GDPR the GDPR.

Security Incident: as defined in paragraph 5 to this Schedule 2.

Special Categories of Personal Data: shall have the meaning given in the UK GDPR and the GDPR.

UK GDPR: as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

2. Appointment. Client (the Controller) appoints Codat as a Processor to Process Personal Data  (specifically, limited business contact details and business financial and transactional information that is contained in the Company Data) (the “Data“) for the purposes described in this Agreement (or as otherwise agreed in writing by the parties), which shall include instructing Codat to aggregate and anonymise the Data as required to produce non-Personal Data that Codat can use to provide support to the Client and for generic product development purposes (the “Permitted Purpose“). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. If Codat becomes aware that Processing for the Permitted Purpose infringes Applicable Data Protection Law, it shall promptly inform the Client.

3. Special Categories of Personal Data. Client shall not disclose (and shall not permit any Data Subject to disclose) any Special Categories of Personal Data to Codat for Processing.

4. Transfers outside of the EEA. In relation to Personal Data governed by the GDPR or UK GDPR, Codat shall not transfer the Data outside of the UK or European Economic Area unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Where so required to ensure that the transfer occurs in compliance with Applicable Data Protection Law, the parties agree that they shall enter into the relevant EU Model Clauses.

5. Confidentiality of Personal Data. Codat shall ensure that any person it authorises to Process the Data shall protect the Data in accordance with Codat’s confidentiality obligations under these Conditions.

6. Technical and Organisational Measures. Codat shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident“).

7. Third Party Processors. Client consents to Codat engaging third party subprocessors to Process the Data for the Permitted Purpose provided that: (i) Codat maintains an up-to-date list of its subprocessors at https://www.codat.io/privacy-policy/, which it shall update with details of any change in subprocessors at least 10 days’ prior to any such change; (ii) Codat imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) Codat remains liable for any breach of this clause that is caused by an act, error or omission of its subprocessor. Client may object to Codat’s appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Codat will either not appoint or replace the subprocessor or, if this is not possible, Codat may suspend or terminate this Agreement (without prejudice to any fees incurred by Client prior to suspension or termination).

8. Data Subject Access Request. Codat shall provide reasonable and timely assistance to Client (at Client’s expense) to enable Client to respond to: (i) any request from a Data Subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a Data Subject, regulator or other third party in connection with the Processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Codat, Codat shall promptly inform Client providing full details of the same.

9. Data Protection Impact Assessments. Codat shall provide reasonable cooperation to Client (at Client’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.

10. Security Incidents. If it becomes aware of a confirmed Security Incident, Codat shall inform Client without undue delay and shall provide reasonable information and cooperation to Client so that Client can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Codat shall further take any such reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep Client informed of all material developments in connection with the Security Incident.

11. Approvals. Client warrants that the Client has obtained all necessary approvals or consents required by Applicable Data Protection Law to permit the disclosure to, or use of any Personal Data or by Codat for the purposes set out in this Agreement