- Affiliate: means, when used with respect to a business entity, any other business entity directly or indirectly controlling, controlled by or under common control with the subject business entity. For the purposes of this Agreement, “control” means the direct or indirect ownership of 50% or more of the outstanding voting securities of a business entity, or the right to receive 50% or more of the profits or earnings of a business entity, or the right to control the policy decisions of a business entity.
- Agreement: these terms and conditions and any schedules attached to these terms and any other documents expressly referred to within.
- Authorised Users: those Client personnel who are authorised to access the Platform.
- Applicable Data Protection Law: means the Data Protection Act 2018, EU General Data Protection Regulation (Regulation 2016/679) or the Gramm-Leach-Bliley Act, as relevant.
- Business Day: as defined in clause 13.12.
- Company (or Companies): companies who make their Company Data available to the Client on the Platform for the purpose of receiving a service or benefit from Client but only during the term of such agreement and, for billing purposes only, complete at least one data synchronisation in a given month.
- Company Data: data uploaded with the Company’s permission to the Platform containing information relating to the Company’s business.
- Controller: shall have the meaning given in Applicable Data Protection Law.
- Client: the party who has entered into this Agreement with Codat.
- Client’s Product(s): the product which the Company wishes to procure from the Client.
- Codat: the Codat entity listed in clause 13.12.
- Commencement Date: the date the Client has accepted the terms of this Agreement.
- Confidential Information: means information in written, oral, or other tangible or intangible forms relating to a party or its Affiliates that is not generally known to the public, including information that is competitively sensitive, relates to past, present, or future business affairs, financial matters, marketing, pricing, confidential or non-public intellectual property, products, services, policies, and procedures and, any information that the party or its Affiliate obtains from a third party if such third party treats the information as confidential. Excluding Personal Data, the term “Confidential Information” does not include information that collectively is: (i) already known to the receiving party, without obligation to disclosing party to keep it confidential, at the time of its receipt directly from disclosing party; (ii) received by the receiving party in good faith on a non-confidential basis from a third party; (iii) is independently developed by the receiving party without use of any Confidential Information received from disclosing party; or (iv) publicly known at the time of its receipt by the receiving party or has become publicly known other than by a breach of this Agreement. Any combination of Confidential Information disclosed with information not so classified will not be deemed to be within one of the foregoing exclusions merely because individual portions of such combination are free of any confidentiality obligation or are separately known in the public domain.
- Data Subject: shall have the meaning given in Applicable Data Protection Law.
- EU Model Clauses: the controller-to-processor standard contractual clauses approved by the European Commission under Decision 2010/87/EU.
- Initial Term End Date: the date this Agreement expires, defined as a month following the Commencement Date, unless extended by further monthly terms.
- 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 calendar month, the first of which will begin on the Commencement Date.
- 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.
- Platform: the Codat online platform accessed at portal.codat.io.
- Platform Fees: the fees payable by the Client for access to and use of the Platform.
- Privacy Notice: Codat’s privacy notice located at codat.io/privacy.
- Processor: shall have the meaning given in Applicable Data Protection Law.
- Process / Processor: shall have the meaning given in Applicable Data Protection Law.
- Special Categories of Personal Data: shall have the meaning given in Applicable Data Protection Law.
- Virus: any thing or device (including any software, code, file or programmeme) 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 programmeme or data, including the reliability of any programmeme or data (whether by re-arranging, altering or erasing the programmeme or data in whole or part or otherwise); or adversely affect the Platform experience, including worms, trojan horses, viruses and other similar things or devices.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 References to a person include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality).
1.2.3 References to a party to this Agreement include a reference to its successors and permitted assigns under this Agreement.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes email.
1.2.6 The headings in this Agreement are for convenience only and do not affect its interpretation.
2.1 This Agreement shall commence on the Commencement Date and shall continue until the Initial Term End Date unless terminated earlier in accordance with its terms.
2.2 This Agreement shall automatically renew for a further monthly term after the Initial Term End Date unless terminated earlier in accordance with its terms.
2.2 These conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. The Platform and Company Data
3.1 Licence. Subject to the terms of this Agreement, Codat grants to the Client a non-exclusive, non-transferable, non-sublicensable right to:
3.1.1 use the Platform solely for the purpose of accessing the Company Data; and
3.1.2 use the Platform to access the Company Data in the format made available by Codat on the Platform from time to time solely for the internal purposes of:
(a) assessing whether to make the Client’s Products available to the particular Company; and
(b) managing the provisions of the Client’s Products to the particular Company.
3.2 Platform Restrictions. The Client undertakes that it shall:
3.2.1 not allow the Platform to be accessed or used by anyone other than Authorised Users;
3.2.2 procure that each Authorised User keep secure their login credentials used to access the Platform and not share them with any other person; and
3.2.3 report to Codat immediately any data breach of the Platform involving Client’s Confidential Information.
3.3 The Client represents and warrants that it shall not use the Platform to access, store, distribute or transmit any Viruses, or any material that:
3.3.1 are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitate illegal activity;
3.3.3 depict sexually explicit images;
3.3.4 promote unlawful violence;
3.3.5 are discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 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.
3.4 The Client shall not:
3.4.1 except as may be allowed by any applicable law which is incapable of exclusion or by agreement between the parties:
(a) and except to the extent 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 Platform in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
3.4.2 access all or any part of Platform in order to build a product or service which competes with the Platform or Codat’s services; or
3.4.3 use the Platform to provide services to third parties which are not consistent with clause 3.1 of this Agreement; or
3.4.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party; or
3.4.5 attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this Agreement.
3.6 Client will take all measures needed to connect its systems to the Platform and will bear all costs in connection therewith. Client shall use reasonable endeavors to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Codat. Upon written request, Codat will provide Client with a copy of its Cyber Security Incident response plan.
3.7 The rights provided under this clause 3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
4. Client’s Obligations
4.1 The Client shall:
4.1.1 procure that the Company:
(a) authorises the Company Data to be uploaded to the Platform and otherwise used by Client and Codat as envisaged under this Agreement;
(b) acknowledges and undertakes that any Company Data uploaded to the Platform:
(i) shall be true and accurate, to the best of its knowledge;
(ii) is not defamatory, discriminatory, offensive, obscene, indecent or otherwise unlawful or objectionable;
4.1.2 co-operate with Codat in all matters relating to the Platform;
4.1.3 ensure that any data on the Platform provided by or on behalf of the Client is true and accurate to the best of its knowledge and its placement on the Platform and use by Codat in accordance with this Agreement will not put Codat in breach of any applicable laws;
4.1.4 provide Codat with such information and materials as Codat may reasonably require in order to grant access to the Platform, and ensure that such information is accurate in all material respects;
4.1.5 not use the Platform 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;
4.1.6 obtain before the date on which the Platform access is to start 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
4.1.7 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.
4.2 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”):
4.2.1 Codat shall without limiting its other rights or remedies have the right to suspend access to the Platform 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;
4.2.2 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
4.2.3 the Client shall reimburse Codat on written demand for any costs or losses sustained or incurred by Codat arising directly or indirectly from the Client Default.
5.1 The Client may contact Codat with technical or other questions with respect to the Platform and to report Platform 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. The Client acknowledges and agrees that the Client shall be responsible for providing first level support to its Authorised Users and Companies provided that the Client will be entitled to raise issues with Codat which are unable to be resolved by the Client.
5.2 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.
6. Fees and Payment
6.1 The Client shall pay to Codat the Platform Fees. Unless otherwise agreed by the parties in writing, Codat shall invoice the Client for an Invoice Period in advance for the Platform Fees and the Client shall pay each invoice submitted to it within 30 days of the date of the invoice to the bank account nominated in writing by Codat from time to time.
6.2 All amounts payable by the Client under this Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under this Agreement by Codat to the Client, the Client shall, on receipt of a valid VAT invoice from Codat, pay to Codat such additional amounts in respect of VAT as are chargeable on the supply of the Platform at the same time as payment is due for the supply of the Platform.
6.3 If for any reason the Client fails to make any payment due to Codat and/or Codat is unable to collect the Platform Fees under this Agreement by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue Platform Fees, whether before or after judgment. The Client shall immediately pay the interest together with the overdue amount.
6.4 The 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). Codat may at any time, without limiting its other rights or remedies, set off any amount owing to it from the Client against any amount payable by Codat to the Client.
7. Intellectual property rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the Platform 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 Platform are the property of Codat or their software partners and are protected by copyright laws. Codat and the other logos shown on the Platform are trademarks, service marks and/or trading names of Codat or its partners and protected by applicable intellectual property legislation.
7.2 Codat may use Company Data: (i) to monitor, detect, prevent, reduce, or otherwise address fraud, risk, security, or technical issues; (ii) to enhance or improve the Platform; (iii) as required or permitted by Applicable Law; or (iv) as otherwise permitted under this Agreement. Client will request each Company to refrain from providing any Personal Data as part of Company Data. 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.
7.3 Client is solely responsible for obtaining all licenses necessary to use the accounting software programmes used by each Company, which licenses are necessary to use the Platform and to access and use Company Data. Client will ensure that such licenses allow for Codat’s access to and use of the programme to provide the Platform as described in this Agreement.
7.4 The Client undertakes not to obtain, access or reproduce, adapt, translate, arrange or make available to any third party, either directly or indirectly, any part of the Platform or its contents (including any electronic materials necessary for its operation) except to the extent (if at all) that and for so long as the Client is expressly permitted to do so in accordance with this Agreement or in the Client’s agreement with associated third parties, or as permitted by any mandatory provisions of law, and undertake to take all necessary steps to prevent unauthorised access to the Platform. 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 Platform 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.
7.5 Clause 7.1 shall survive termination or expiry of this Agreement.
8. Data, Privacy and Confidentiality
8.1 By using the Platform, the Companies will place Company Data on to the Platform. That information will be accessible to the Client. The Client acknowledges that in placing Company Data on to the Platform that information or that information in conjunction with other information regarding individuals may constitute Personal Data. Where Codat is a Controller, Codat may use Personal Data in the manner set out in our Privacy Notice and as further set out in these Conditions.
8.2 The Client is required to enter into direct contractual relationships with each Company to obtain permission to access and use the Company Data of that Company on the Platform. The Client agrees to procure from the Company (where required by law) that Codat shall have the right to store, use, reformat and distribute and otherwise Process such Company Data and any Personal Data as required under these Conditions.
8.3 The Client accepts that they shall be responsible for procuring that the Company provides the Company Data and/or any Personal Data, or procuring that such instructions as are appropriate are given to associated third parties to deliver Company Data and/or any Personal Data to, or arrange for the collection of, such Company Data and/or any Personal Data by Codat in a description and format that is suitable for the Platform.
8.4 The Client shall enter into transactions with Company(s) and/or third parties and accepts and acknowledges that Codat has no liability for the fulfilment of any such transactions and/or the associated protection and Processing of such Company Data and/or any Personal Data by Codat in such transactions, all of which shall be the sole responsibility of the Client and the Company(s) or third parties.
8.5 The 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 Company Data and/or any Personal Data or by Codat for the purposes set out in this Agreement.
8.6 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 and any Personal Data being stored and/or Processed by Codat under these Conditions, including but not limited to (where relevant) the transfer of Company Data and/or Personal Data to the Client outside of the UK EEA. Client will provide written copies of Company consent to Codat upon Codat’s reasonable request.
8.7 If Codat is a Processor of Personal Data in accordance with the Applicable Data Protection Law, the terms of Schedule 1 shall apply.
8.8 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.
8.9 The Client shall defend, indemnify and hold harmless Codat 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 Company’s disclosure of such Personal Data to Codat for the purpose of accessing or using the Platform.
8.10 Both Codat and the Client will each hold in confidence, shall use only for the purposes set out in this Agreement and shall not (other than as may be required by law or in accordance with the order of any competent court or tribunal or recognised listing authority) disclose to any third party any Confidential Information of the other.
8.11. Confidential Information. During the term of this Agreement, each party may have access to the other party’s Confidential Information. Confidential Information will remain the property of the furnishing party, and the receiving party will not be deemed by virtue of this Agreement or any access to the furnishing party’s Confidential Information to have acquired any right or interest therein. Confidential Information of Codat includes this Agreement, the Platform, the format, structure and presentation of Company Data on the Platform except as otherwise agreed to by the parties in writing. As between, Codat and Client, Confidential Information of Client includes Company Data.
8.11.1. Confidentiality Obligations. The receiving party shall maintain in strict confidence all Confidential Information of the other party; and shall not disclose such Confidential Information to any third party; except that Codat may disclose information to its subcontractors with a need to know and which have entered into a confidentiality agreement with Codat with respect to such information. The Confidential Information shall only be used by the receiving party in order to perform its obligations under this Agreement. Access to the disclosing party’s Confidential Information shall be limited to the receiving party’s personnel on a “need to know” basis under this Agreement or, with respect to Codat, for the provision of the Platform, and the receiving party shall require its personnel to adhere to these confidentiality obligations. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
8.11.2. Responsibility for Third Parties. If Codat shares any Client Confidential Information with a third party, Codat will remain liable to Client for the third party’s misuse or loss of the Confidential Information.
8.11.3. Permitted Disclosure. Notwithstanding the restrictions and obligations of this Agreement, the Parties and their personnel may disclose any Confidential Information to the extent required by an order of a court or other governmental authority of competent jurisdiction, but only after the disclosing party has, if the receiving party is permitted by applicable law or the requesting authority, 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.
8.11.4. 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 Section 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 Section, 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 Section. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.
9.1 The 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 Platform, provided that:
9.1.1 the Client is given prompt notice of any such claim;
9.1.2 Codat provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
9.1.3 the Client is given sole authority to defend or settle the claim.
10. Limitation of Liability
10.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, Codat shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with this Agreement for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of use or corruption of software, data or information;
10.2.6 loss or damage to goodwill or reputation; and
10.2.7 any indirect or consequential loss.
10.3 Subject to clause 10.1, 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 to a) £1000 if the Codat contracting entity is Codat Limited; or b) $1000 if the Codat contracting entity is Codat Inc.
10.4 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. The Client is encouraged to carry out their own due diligence in respect of those with whom they wish to transact.
10.5 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 Platform. 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 Platform.
10.6 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.
10.7 Company Data is provided by Companies on an “as is”, “as available” basis and Codat does not give or make any warranty or representation of any kind, whether express or implied, in relation to Company Data.
10.8 Codat has no relationship with or obligation to, and accepts no liability arising out of the Platform in relation to, to any other party. The Client acknowledges and agrees that it is solely responsible for its use of the Company Data.
10.9 To the extent the governing law of this Agreement is English law, 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.
10.10 This clause 10 shall survive termination of the Agreement.
11. Suspension and Termination
11.1 Codat reserves the right to suspend access to the Platform in the event that 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 Platform.
11.2 Without limiting its other rights or remedies, Codat may terminate this Agreement with immediate effect by giving written notice to the Client. Without limiting its other rights or remedies, the Client may decline to renew this Agreement for an additional monthly term at any point in the preceding monthly term.
12. Consequences of Termination
12.1 On expiry or termination of this Agreement for any reason:
12.1.1 the Client shall immediately pay to Codat all of the Client’s outstanding unpaid Fees and any interest;
12.1.2 the Client shall immediately cease using the Platform and Codat may terminate all Authorised Users’ Platform accounts;
12.1.3 the Client’s licence to use the Platform under clause 3.1 shall end;
12.1.4 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; and
12.1.5 clauses which expressly or by implication survive termination shall continue in full force and effect.
13.1 No partnership. 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.
13.2 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:
13.2.1 war, riot, civil commotion or terrorist attacks;
13.2.2 fires, floods or storms;
13.2.3 acts of God; and
13.2.4 strikes, lockouts and other industrial disputes.
13.3 Assignment and other dealings. The Client may not at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement.
13.4 Entire agreement.
13.4.1 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.
13.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13.4.3 Nothing in this clause 13.4 shall limit or exclude any person’s liability for fraud, including fraudulent misrepresentation.
13.5 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
13.6.1 waive that or any other right or remedy; or
13.6.2 prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
13.8.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, email.
13.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.12; 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, one Business Day after transmission.
13.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.9 Third parties. No one other than a party to this Agreement shall have any right to enforce any of its terms.
13.10 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts.
13.11 Publicity. Client consents, and will work collaboratively with Codat, to develop a joint-marketing campaign to include, but not necessarily limited to, announcements by both Client and Codat and a case study for use by Codat in its marketing materials. Client also consents that Codat may include Client on its customer list that is circulated with its marketing materials. Any other use of Client’s name as a Codat customer will be made only with Client’s prior written consent.
13.12 Codat entity, governing law and jurisdiction. The Codat entity entering into this Agreement, the law that will apply in any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, and the courts that have exclusive jurisdiction over any such dispute or claim, shall be determined in accordance with the table below.
|If the Client is domiciled (incorporated) in:||Codat entity||Governing law||Courts with exclusive jurisdiction||Definition 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 0BE||The laws of England||The courts of England||A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|USA||Codat Inc, a company incorporated in Delaware with its principle place of business being 215 Park Avenue South, 9th Floor, New York, NY 10003||The laws of Delaware||The courts of New York, New York||A day on which the Federal Reserve Bank of New York is open for business.|
- The following clauses shall apply to Clients domiciled in the USA:
13.13.1 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.
13.13.2 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, colour, 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, colour, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
SCHEDULE 1 – DATA PROCESSING ADDENDUM
1. Client (the Controller) appoints Codat as a Processor to Process the Personal Data described in this Agreement (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.
2. Client shall not disclose (and shall not permit any Data Subject to disclose) any Special Categories of Personal Data to Codat for Processing.
3. Codat shall not transfer the Data outside of the UK or European Economic Area (“EEA”) 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 these Conditions shall incorporate the terms of the EU Model Clauses.
4. Codat shall ensure that any person it authorises to Process the Data (an “Authorised Person”) shall protect the Data in accordance with Codat’s confidentiality obligations under these Conditions.
5. 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”).
6. 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).
7. 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.
8. 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.
9. 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.