CloudTables Master Subscription Agreement

PLEASE SCROLL DOWN AND READ CAREFULLY ALL THE MASTER SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS CONTAINED HEREIN BEFORE USING THE SERVICES (DEFINED BELOW).

BY DOING ANY OF THE FOLLOWING:

• CLICKING THE "I AGREE" BUTTON WHEN CREATING A CLOUDTABLES APPLICATION;
• DOWNLOADING OR USING THE SOFTWARE; OR
• PAYING FOR THE SERVICES,

YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICES OFFERED BY SPRYMEDIA LIMITED (THE “SUPPLIER”) AND YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY OR INDIVIDUAL. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST: NOT INSTALL THE SERVICE; AND NOT USE THE SERVICE.

THIS AGREEMENT IS EFFECTIVE WHEN CUSTOMER CLICKS THE “I AGREE" BUTTON OR CUSTOMER DOWNLOADS OR BEGINS USING THE SERVICE, WHICHEVER IS EARLIER. (“EFFECTIVE DATE”).

Agreed terms

1.

Interpretation

1.1

The definitions and rules of interpretation in this clause apply in this Agreement.

• Agreement: means together these terms and conditions, the Schedule and the Order Confirmation.
• Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in 2.2(b).
• Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
• Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in 10.5 or 10.6.
• Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
• Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
• Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);.
• Data Protection Losses: all liabilities including all:

  1.

  costs (including legal costs) claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and

  2.

  to the extent permitted by law:

  2.1.

  administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;

  2.2.

  compensation which is ordered by a Supervisory Authority to be paid to a data subject; and

  2.3.

  the reasonable costs of compliance with investigations by a Supervisory Authority.

• Documentation: the documents made available to the Customer by the Supplier online via cloudtables.com (or such other web address notified by the Supplier to the Customer from time to time) which sets out the user instructions for the Services.
• Initial Subscription Term: the initial term of this Agreement as set out in the Order Confirmation.
• Intellectual Property Rights: any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos and instruction manuals.
• Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
• Open Source Licence: licensing or distribution terms relating to software or other materials that are distributed as “free software”, “open source software” “copyleft software” or “community source code”.
• Order Confirmation: written confirmation of the Customer’s order for the Services whether in the format of an invoice, an email confirmation or as otherwise set out in writing from the Supplier to the Customer as the case may be.
• Renewal Period: the period described in 13.1.
• Package: the Services packages available to the Customer under this Agreement, as further described in Parts 1 to 3 of the Schedule.
• Selected Package: the Services Package selected by the Customer as set out in the Order Confirmation.
• Services: the Supplier’s delivery of the Software to the Customer in accordance with this Agreement.
• Software: the online software application “CloudTables” provided by the Supplier as part of the Services.
• Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Selected Package, as set out in the Order Confirmation (where applicable).
• Subscription Term: has the meaning given in 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
• Supplier IPRs: means the Intellectual Property Rights in the Software or Documentation owned by the Supplier and excluding any Intellectual Property Rights licensed to the Supplier under an Open Source Licence and any other Third Party IPR.
• Supervisory Authority: any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation.
• Third Party IPRs: means Intellectual Property Rights proprietary to any third party, but excluding those licensed under an Open Source Licence.
• UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
• Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
• Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

2

Use of the Services

2.1

Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2

In relation to the Authorised Users, the Customer undertakes that:

(a)

where applicable, each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed regularly and that each Authorised User shall keep his password confidential; and

(b)

shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;

2.3

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a)

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)

facilitates illegal activity;

(c)

depicts sexually explicit images;

(d)

promotes unlawful violence;

(e)

is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f)

is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause, or at the discretion of the Supplier, to terminate this Agreement in accordance with clause 13.

2.4

The Customer shall not:

(a)

except as may be allowed under an applicable Open Source Licence or by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

(i)

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii)

attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b)

access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c)

use the Services and/or Documentation to provide services to third parties; or

(d)

subject to 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(e)

attempt to obtain, or assist third parties in obtaining, access to the Services [and/or Documentation], other than as provided under this clause 2; or

(f)

introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.

2.5

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.6

The rights provided under clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless otherwise agreed in writing with the Supplier.

3

Additional storage

3.1

Each Package is subject to a storage limitation as set out in Parts 1 to 3 of the Schedule. Subject to clauses 3.2 and 3.3, the Customer may, from time to time during any Subscription Term, seek to upgrade its Selected Package to a Package with more storage capacity.

3.2

Payments for changes to the Selected Package shall be pro-rated from the date of activation in accordance with this clause 3.2. for the remainder of the Initial Subscription Term or the then current Renewal Period as applicable, in accordance with clause 8, the Supplier shall activate the upgraded Package upon receipt of payment and the upgraded Package shall become the Selected Package for the purposes of this Agreement.

4

Services

4.1

The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement and, more particularly, the specific terms applicable to the Selected Package (as set out in Parts 1, 2 or 3 of the Schedule).

4.2

The Supplier shall make the Services available in accordance the specific terms applicable to the Selected Package, except for:

(a)

planned maintenance, provided that the Supplier has used reasonable endeavours to give the Customer at least seven (7) days notice in advance; and

(b)

unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours' notice in advance.

5

Customer data

5.1

The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

5.2

In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its archiving procedures. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under 5.8).

5.3

Both parties will comply with all applicable requirements of the Data Protection Legislation. This 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

5.4

The parties acknowledge that if the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement:

(a)

the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation; and

(b)

Part 4 of the Schedule sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

5.5

Without prejudice to the generality of 5.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf.

5.6

Without prejudice to the generality of 5.3, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Agreement:

(a)

process that personal data only on the documented written instructions of the Customer (and the Customer instructs the Supplier to process personal data for the following purposes: (i) processing in accordance with the Agreement and applicable Order Confirmation(s), including to provide the Service; (ii) processing initiated by Authorised Users in their use of the Service; and (iii) processing to comply with other reasonable instructions provided by Customer (e.g., via email)), unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

(b)

not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

(i)

the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

(ii)

the data subject has enforceable rights and effective legal remedies;

(iii)

the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)

the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

(c)

assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(d)

notify the Customer without undue delay on becoming aware of a personal data breach;

(e)

at the written direction of the Customer, delete or (at the Customer’s cost) return personal data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and

(f)

maintain complete and accurate records and information to demonstrate its compliance with this 5 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

5.7

Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

5.8

The Customer consents to the Supplier appointing Stripe Inc. and Pulsant Ltd as third-party processors of personal data under this Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this 5. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this 5.

6

Supplier's obligations

6.1

The Supplier undertakes that the Services will be performed:

(a)

substantially in accordance with the specific terms applicable to the Selected Package (as set out in Parts 1, 2 or 3 of the Schedule), and the Documentation; and

(b)

with reasonable skill and care.

6.2

The undertaking at 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents.

6.3

If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in 6.1.

6.4

This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

6.5

The Supplier:

(a)

does not warrant that:

(i)

the Customer's use of the Services will be uninterrupted or error-free;

(ii)

that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;

(iii)

the Software or the Services will be free from Vulnerabilities; or

(iv)

the Software, Documentation or Services will comply with any legislation, regulatory requirements, industry standards, certifications or other guidance applicable to the Customer.

(b)

is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.6

The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7

Customer's obligations

7.1

The Customer shall:

(a)

provide the Supplier with:

(i)

all necessary co-operation in relation to this Agreement; and

(ii)

all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b)

without affecting its other obligations under this Agreement, comply with all applicable laws (including local laws) and regulations with respect to its activities under this Agreement and shall notify the Supplier of the same to the extent that such local applicable laws may directly impact the Services being provided by the Supplier under this Agreement;

(c)

carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d)

ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

(e)

obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

(f)

ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

(g)

be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

7.2

The Customer acknowledges that the Services and the Software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. The Customer agrees that it shall comply with these laws and regulations, and will not export or re-export any part of the Services or Software, in violation of these laws and regulations, directly or indirectly.

8

Charges and payment

8.1

The Customer shall pay the Subscription Fees to the Supplier for the Selected Package in accordance with this 8.

8.2

Subject to clause 8.3, payment of the Subscription Fees will be due and payable at the time of placing the order for the Selected Package via the Supplier’s website. The Customer may pay using any of the methods advertised on the Supplier’s website.

8.3

In relation to Selected Package upgrades in accordance with clause 3 and Selected Package renewals in accordance with clause 13.1, the Supplier shall notify the Customer in writing of the due date for payment of the applicable Subscription Fees and unless agreed otherwise in writing between the parties, payment will be taken automatically using the payment details associated with the Customer’s account. If the Supplier has not received payment within seven (7) days after the due date for payment as notified by the Supplier, and without prejudice to any other rights and remedies of the Supplier:

(a)

the Supplier may, without liability to the Customer, disable the Customer's account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while payment remains outstanding; and

(b)

interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current Federal funds rate set by the US Federal Reserve from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.4

All amounts and fees stated or referred to in this Agreement:

(a)

shall be payable in US dollars unless agreed between the parties in writing;

(b)

are, subject to 12.3(c), non-cancellable and non-refundable;

(c)

are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

8.5

The Supplier shall be entitled to increase the Subscription Fees, at the start of each Renewal Period upon 60 days' prior notice to the Customer.

9

Proprietary rights

9.1

The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Services or the Documentation.

9.2

The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10

Confidentiality

10.1

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

(a)

is or becomes publicly known other than through any act or omission of the receiving party;

(b)

was in the other party's lawful possession before disclosure by a party;

(c)

is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d)

is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2

Subject to 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

10.3

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

10.4

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5

The Customer acknowledges that details of the Services and Documentation, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

10.6

The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7

No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

10.8

The above provisions of this 10 shall survive termination of this Agreement, however arising.

11

Indemnity

11.1

The Customer shall defend, indemnify and hold harmless the Supplier 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 Customer's use of the Services and/or Documentation, provided that:

(a)

the Customer is given prompt notice of any such claim;

(b)

the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

(c)

the Customer is given sole authority to defend or settle the claim.

11.2

The Customer shall defend, indemnify and hold harmless the Supplier its officers, directors and employees in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, the Supplier and any sub-processor arising from or in connection with any:

(a)

non-compliance by the Customer with the Data Protection Legislation;

(b)

processing carried out by the Supplier or any sub-processor pursuant to any processing instruction given by the Customer that infringes any Data Protection Legislation; or

(c)

breach by the Customer of any of its obligations under clause 5,

except to the extent that the Data Protection Losses are a direct result of the processing by the Supplier of personal data in breach of its obligations under clause 5.

11.3

The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of Supplier IPRs in the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a)

the Supplier is given prompt notice of any such claim;

(b)

the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

(c)

the Supplier is given sole authority to defend or settle the claim.

11.4

In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Supplier IPRs in the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.

11.5

In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)

a modification of the Services or Documentation by anyone other than the Supplier; or

(b)

Customer Data uploaded to the Software by the Customer or an Authorised User in a way that gives rise to such a claim; or

(c)

the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier;

(d)

the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or

(e)

Intellectual Property Rights licensed to the Supplier under an Open Source Licence or any other Third Party IPRs.

11.6

The foregoing and clause 12.3 state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12

Limitation of liability

12.1

Except as expressly and specifically provided in this Agreement:

(a)

the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

(b)

all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

(c)

the Services and the Documentation are provided to the Customer on an "as is" basis.

12.2

Nothing in this Agreement excludes or limits the liability of either party:

(a)

for death or personal injury caused by negligence; or

(b)

for fraud or fraudulent misrepresentation.

12.3

Subject to 12.1 and 12.2:

(a)

the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;

(b)

where the Customer has elected to purchase the “Personal” Selected Package, the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.3) tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to ten US Dollars ($10.00)

(c)

where the Customer has elected to purchase either the “Professional” or the “Enterprise” Selected Package, the Supplier's total aggregate liability in contract (including in respect of the indemnity at 11.3), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the Selected Package during the 12 months immediately preceding the date on which the claim arose.

13

Term and termination

13.1

This Agreement shall, unless otherwise terminated as provided in this 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of equivalent duration to the Initial Subscription Term (each a Renewal Period), unless:

(a)

the Customer cancels their subscription to the Selected Package by clicking the 'Cancel Subscription' button in their "Billing" section on the Supplier’s website before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b)

the Supplier notifies the Customer of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(c)

this Agreement is otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

13.2

Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer 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 in writing to make such payment.

13.3

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a)

the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;

(b)

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

(c)

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d)

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e)

an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(f)

the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(g)

a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(h)

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 7 days;

(i)

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 13.3(b) to 13.3(h) (inclusive); or

(j)

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.4

On termination of this Agreement for any reason:

(a)

all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

(b)

each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(c)

the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with 5.6(c), unless the Supplier receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data in a format as may be specified by the Supplier in the Documentation or in writing to the Customer from time to time. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

(d)

any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

14

Force majeure

14.1

The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15

Conflict

15.1

If there is an inconsistency between any of the provisions in the Order Confirmation, these terms and conditions and the Schedule, the following order of priority applies:

(a)

the Order Confirmation;

(b)

these terms and conditions; and

(c)

the Schedule.

16

Variation

16.1

The Supplier reserves the right to update these terms and conditions from time to time on notice to the Customer in writing. Where the Customer objects to such updates, it may terminate this Agreement in accordance with clause 13.

17

Waiver

17.1

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.

18

Rights and remedies

18.1

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.

19

Severance

19.1

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

19.2

If any provision or part-provision of this Agreement is deemed deleted under 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20

Entire agreement

20.1

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.

20.2

Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

20.3

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

21

Assignment

21.1

The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21.2

The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22

No partnership or agency

22.1

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23

Third party rights

23.1

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Third Party Rights) (Scotland) Act 2017.

24

Notices

24.1

Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Confirmation, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in the Order Confirmation.

24.2

A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received on receipt of a delivery return email.

25

Governing law and jurisdiction

25.1

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Scotland and each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.

This is the Schedule referred to in the foregoing Master Services Agreement between the Customer and the Supplier for the Services:

SCHEDULE

Part 1

Package Specific Terms - Personal package

10 data sets

100MB Storage / 1MB file size limit

Full set of features

CloudTables referral link shown

Part 2

Package Specific Terms - Professional package

Unlimited data sets

50k row limit

5GB storage

No referral link

No SLA

Part 3

Package Specific Terms - Enterprise package

Unlimited data sets

50k row limit

5GB storage

No referral link

99.99% monthly uptime SLA, per our SLA

Prioritised technical support

Part 4

Processing, Personal Data and Data Subjects

1

Scope: The scope of the processing of personal data by the Supplier under this Agreement is limited to the personal data contained in the Customer Data.

2

Nature: Computing, storing and other such Services as initiated by the Customer from time to time.

3

Purpose of processing: The purpose of the processing of personal data by the Supplier under this Agreement is for the provision of the Services in accordance with the Agreement.

4

Duration of the processing: For the duration of the Subscription Term.

5

Types of personal data: Personal data contained within the Customer Data as uploaded to the Software by the Customer or the Authorised User from time to time.

6

Categories of data subject: The data subjects may include the Customer’s customers, employees, consultants, agents, suppliers, advisors, end-users and other third parties.