Eligible's Retain Terms of Service

Terms of Services for Eligible’s Retain

Items

INTERPRETATION
DURATION
SET-UP SERVICES
THE ELIGIBLE SERVICE
PARTIES OBLIGATIONS
INTELLECTUAL PROPERTY
DATA PROTECTION
CONFIDENTIAL INFORMATION
NON-SOLICITATION
FEES AND PAYMENTS
AVAILABILITY AND SUPPORT
SUSPENSION AND TERMINATION
LIMITED WARRANTY
ELIGIBLE’S LIABILITY
CHANGES TO ELIGIBLE SERVICE
GENERAL
SCHEDULE 1
SCHEDULE 2

1. INTERPRETATION

1.1 In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:

“Prospect” ” mean the in system status granted to any customer, who is engaged and contacted by the Eligible System.
“Agreement” has the meaning given to it in the Agreement; “Subscription Fee” has the meaning given to it in the Agreement;
“Authorised User” means an employee or Customer of the Client, or any other person authorised by the Client to access the Eligible Service;
“Client” means the person identified in the Agreement;
“Client Account” means the account set up by the Client with an ID and password that the Client uses to access, and monitor its and its Authorised Users’ activities on, the Eligible Service;
“Client Data” and “Client Personal Data” means the Customer data and any other content and data that the Client makes available to Eligible in connection with its use of the Eligible Service and the promotion of the Eligible Service to its Customers, and that is hosted by Eligible in connection with the provision of the Eligible Service;
“Commencement Date” means the date of the last signature on the Agreement;
“Confidential Information” means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;
“Customer” has the meaning given to it in the Agreement;
“Data Protection Laws” has the meaning given to it in clause 7
“Eligible” has the meaning given to it in the Agreement;
“Extended Term” means the period set out in the Agreement or as otherwise agreed by the parties in writing;
“Fees” means the amounts set out in the Agreement and/or such other amounts that are payable pursuant to this Agreement or that the parties may agree in writing from time to time, for the provision of the Eligible Service and Set-up Services;
“GDPR” has the meaning given to it in clause 7.17;
“Group” means, in relation to a company, that company, any subsidiary or holding company (each having the meanings in sections 1161 and 1162 of the Companies Act 2006) from time to time of that company, and any subsidiary from time to time of a holding company of that company;
“Initial Term” means the period set out in the Agreement;
“Set-up Fees” has the meaning given to it in the Agreement;
“Set-up Period” has the meaning given to it in the Agreement
“Set-up Services” has the meaning given to it in the Agreement;
“Single Point of Contact” means, in relation to each party, the contact person listed in the Agreement and Eligible’s contact person shall be support@eligible.ai;
“Eligible Service” has the meaning given to it in the Agreement;
“Term” means the Initial Term and any Extended Term;
“Third Party Sites” has the meaning given in clause 5.3;
“VAT” means value added tax; and
“Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.

2. DURATION

2.1 The Agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with clause 2.2 or clause 12.2, shall continue for the Initial Term.

2.2 The Initial Term shall automatically extend for an Extended Term at the end of the Initial Term and at the end of each Extended Term thereafter, unless either party gives written notice to the other party to terminate the Agreement at the end of the Initial Term or any time during the Extended Term (as applicable), such notice to be given no later than 30 days prior to the expiry of the Initial Term.

3. SET-UP SERVICES

3.1 Eligible shall provide the Set-up Services to the Client with reasonable diligence and dispatch, and with reasonable skill and expertise, in accordance with this Agreement.

3.2 In performing the Set-up Services, Eligible shall comply with the Client’s reasonable instructions, and the Client shall provide Eligible with such access to its site and computer systems as Eligible may reasonably require in order to provide the Set-up Services.

3.3 Eligible shall inform the Client upon completion of the Set-up Services during the Set-up Period, and the Client shall, subject to satisfactory completion of any applicable testing of the Eligible Service reasonable required by the Client, confirm to Eligible the completion of the Set-up Services.

4. THE ELIGIBLE SERVICE

4.1 Eligible grants the Client a non-exclusive, non-transferable licence for the Term to access and use, and permit Authorised Users to access and use the Eligible Service in accordance with this Agreement, for the following purposes:
(a) the Client’s own internal business purposes; and (b) promoting the use of the Eligible Service to the Client’s Customers.

4.2 The Client may not sublicence the rights granted in clause 4.1 other than to allow Authorised Users to access and use the Eligible Service.

4.3 The Client may grant its Customers access to the Eligible Service provided that:
(a) the Client does not make or give any representations, warranties or other promises concerning the Eligible Service unless agreed by Eligible in writing from time to time; and (b) the Client ensures that the terms on which the Customer is granted access to the Eligible Service protect Eligible and its proprietary rights in the Eligible Service to the same extent as set out in this Agreement, and will take reasonable steps to enforce such terms at Eligible’s request; and
(c) the Client ensures that as a provider of Services, Eligible is not liable to Client’s Customers in any way.

4.4 The parties acknowledge that it is a fundamental requirement that the content of communications to Customers, in particular those that are considered to be regulated financial promotions, are clear, fair and not misleading. The parties further agree that responsibilities and potential liabilities to the Clients’ Customers shall be apportioned and dealt with by the parties as follows:
(a) the Client is responsible for the accuracy and the lawfulness of processing, and basis of transfer of the Customer Data to Eligible (b) Eligible is responsible for the correct operation of the Eligible Service, technology and software as it is applied to, or interacts with, the Transferred Data; and (c) where Customers, following their use of the Eligible System, go on to engage with the Client in relation to the provision to the Customer by the Client of advisory services the Client shall be responsible for the standard of service and advice provided to customers.

4.5 The parties shall appoint the Single Point of Contact as their authorised representatives for all purposes connected with this Agreement. For the avoidance of doubt, Eligible’s Single Point of Contact shall be support@eligible.ai.

4.6 The Client must treat any username and password used to access the Eligible Service or the Client Account as Confidential Information and must not disclose such information to any third party (other than to Authorised Users).

4.7 The Client shall procure that each Authorised User keeps secure and confidential any username and password provided to, or created by, that Authorised User for their use of the Eligible Service, and that they will not disclose such username and password to any third party, including any other Authorised Users or persons within the Client’s organisation, company or business.

4.8 The Client is responsible for maintaining the confidentiality of its login details for its Client Account and for any activities that occur under its Client Account.

4.9 Eligible encourages the Client to use “strong” passwords (using a combination of upper and lower-case letters, numbers and symbols) with its Client Account, and to encourage Authorised Users to use strong passwords with any account used to access the Eligible Service.

4.10 The Client will take reasonable measures to prevent any unauthorised access to, or use of, the Eligible Service, and must promptly notify Eligible in the event of any such unauthorised access or use. If the Client has any concerns about the login details for its Client Account, or thinks any of them may have been misused, the Client shall notify Eligible’s Single Point of Contact (support@eligible.ai). The Client must notify Eligible as soon as reasonably practicable if the Client becomes aware that the login details of any Authorised User are lost, stolen, or otherwise compromised.

4.11 The Client is responsible for making all arrangements necessary for Authorised Users to gain access to the Eligible Service.

4.12 The Client is responsible for ensuring that all Authorised Users are aware of the terms of the Agreement and the Client will use all reasonable endeavours to ensure that Authorised Users act in compliance with such terms.

4.13 The Client shall indemnify and defend Eligible, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by an Authorised User or any third party related to the Client’s use of the Eligible Service (except to the extent caused by Eligible’s negligence), including the failure of, or non-availability affecting, the Eligible Service.

5. PARTIES OBLIGATIONS

5.1 The Client:
(a) must comply with all applicable laws and regulations with respect to its use of the Eligible Service and its activities under the Agreement; (b) must use the Eligible Service in accordance with the terms of the Agreement and shall be responsible for any acts and omissions in connection with the use of the Eligible Service by its employees; (c) must ensure that the Client ends any Authorised User’s right to access and use the Eligible Service if the Authorised User ceases its employment or other relationship with the Client;
(d) must notify Eligible in writing if there are any changes to any of the Client’s contact details as set out in the Agreement; (e) must ensure that its network and systems, including its internet browser, complies with any relevant specifications provided by Eligible in writing (including e-mail) from time to time; (f) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Eligible Service; and (g) must take all reasonable steps to ensure that neither the Client nor any Authorised Users do, any of the following: (i) access, store, distribute, or transmit any Virus through the Eligible Service; (ii) use the Eligible Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive; (iii) use the Eligible Service in a manner that is illegal or causes damage or injury to any person or property; (iv) use any automated system, including without limitation “robots”, “spiders”, or “offline readers”, to access the Eligible Service in a manner that sends more request messages to the Eligible Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (v) attempt to interfere with or compromise the integrity or security of the Eligible Service, and Eligible reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Client Account or access to all or any part of the Eligible Service by any Authorised User, for any breach of any provision of this clause 5.1(g).

5.2 Eligible may monitor the Client’s and Authorised Users’ use of the Eligible Service to ensure the quality of, and improve, the Eligible Service, and verify the Client’s compliance with the Agreement.

5.3 The Eligible Service may contain links to, or call the servers of, third party websites or services that are not under Eligible’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites”). As such, Eligible is not responsible for, and makes no express or implied warranties with regard to, the information, content

Eligible Agreement Page | 8
or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk.

6. INTELLECTUAL PROPERTY

6.1 Eligible is the owner or licensee of all intellectual property rights in the Eligible Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved. Except as expressly set out in this Agreement, Eligible does not grant to the Client any rights to or licenses in respect of the Eligible Service.

6.2 The Client will not, when using the Eligible Service:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Eligible Service in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to humanperceivable form all or any part of the Eligible Service; (c) access all or any part of the Eligible Service in order to build a product or service which competes with the Eligible Service, or use or attempt to use the Eligible Service to directly compete with Eligible; (d) erase or remove any proprietary or intellectual property notice contained in the Eligible Service; or (e) erase, remove or amend any notice or image displayed on the Eligible Service.

6.3 The Client shall, in any publicity or marketing material relating to the promotion and sale of access to the Eligible Service, refer to the Eligible Service as “powered by eligible” (or incorporate any other notice or image that uses Eligible’s name, logo or related trademarks as notified by Eligible in writing); and Eligible hereby grants the Client such rights as are necessary to use its name, logo and related trade marks for the purpose of this clause 6.3

6.4 Eligible may only use the Client’s name, logo, and related trade marks in any of Eligible’s publicity or marketing
materials (whether in printed or electronic form) or for any other purpose if the Client consents to such use in writing.

6.5 The Client agrees to provide regular feedback to Eligible in relation to its use of the Eligible Service. By submitting feedback, the Client acknowledges that Eligible may use and allow others to use this feedback in the Eligible Service or otherwise without any restriction and without payment of any kind to the Client provided that any such feedback shall be anonymised prior to such use.

6.6 Eligible shall use the Client’s name, logo and related trademarks to rebrand the Eligible Service, solely for the purposes of providing the Set-up Service, and the Client hereby grants Eligible such rights as are necessary to use its name, logo and related trade marks for the purpose of clause 6.4.
Eligible may configure the Eligible Service so that the words “powered by eligible” (or any other notice or image incorporating Eligible’s name, logo or related trademarks as may be determined by Eligible) are displayed on each page viewable on the Eligible Service, in a manner and in a position determined by Eligible in its absolute discretion, and Eligible hereby grants the Client such rights as are necessary for the purpose of this clause.

7. DATA PROTECTION

7.1 This clause 7 applies in relation to any personal data that Eligible may process as a processor on behalf of the Client as a result of hosting the Client Data, or as a result of the Client’s use of the Eligible Service, including the personal data described in Schedule 1 (the “Client Personal Data”).

7.2 Eligible and the Client agree that, in relation to the Client Personal Data, Eligible will process the personal data only:
(a) in accordance with the terms of the Agreement and any lawful written instructions reasonably given to Eligible by the Client from time to time, unless processing is required by European Union or Member State law to which Eligible is subject, in which case Eligible shall, to the extent permitted by European Union or Member State law, inform the Client of that legal requirement before processing that personal data; and (b) in accordance with Data Protection Laws;

7.3 For the purposes of clause 7.2 (a), the parties agree that Eligible may process the Client Data to create aggregated and anonymised data for use in machine learning and analytics and the Client waives any and all rights to Client Data that has been anonymised and aggregated by Eligible for its own purposes.

7.4 The Client warrants to Eligible that it will collect and process the personal data in compliance with all Data Protection Laws and that it has obtained all necessary permissions from the data subjects to whom the personal data relates to allow Eligible to lawfully store, transfer and process the Client Personal Data in the course of providing the Eligible Service.

7.5 The Client agrees to indemnify and keep indemnified, and hold harmless, at its own expense, Eligible against all costs, claims, damages incurred by Eligible or for which Eligible may become liable due to failure by the Client or the Authorised Users to comply with clause 7.4.

7.6 Subject to (without limitation) clauses 7.7 and 7.8, the Client agrees that Eligible may transfer the Client Personal Data to third party sub-processors, including third parties providing hosting, infrastructure, maintenance and other services to Eligible, as required in order for Eligible to provide the Eligible Service (each, a “Sub-Processor”). Eligible shall notify the Client from time to time of the identity of any Sub-Processors it engages. If the Client (acting reasonably) does not approve of a new Sub-Processor, then without prejudice to any of its rights to terminate the Agreement, the Client may request that Eligible moves the Client Personal Data to another SubProcessor and Eligible shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Sub-Processor does not process any of the Client Personal Data.

7.7 In respect of any Sub-Processors appointed by Eligible in accordance with clause 7.6, Eligible will enter into a contract with the Sub-Processor which includes terms which are substantially similar to those set out in this clause 7

7.8 Eligible shall not transfer Agreement Personal Data to any country outside of the UK or the EEA, unless the transfer utilises a valid crossborder transfer mechanism authorised by the Data Protection Laws, for example the Standard Contractual Clauses or the UK IDTA.

7.9 Eligible shall implement appropriate technical and organisational measures in relation to the processing of Client Personal Data to ensure a level of security appropriate to the risk, including but not limited to the measures set out in Schedule 2.

7.10 If Eligible or any Sub-Processor becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Client Personal Data (a “Security Incident”), Eligible shall:
(a) notify the Client of the Security Incident within 36 hours; (b) investigate the Security Incident and provide all such assistance and information to the Client (and any law enforcement or regulatory official) as the Client reasonably requires to investigate the Security Incident; and (c) take steps to remedy any non-compliance with this clause 7.

7.11 Eligible shall notify the Client of any request received by Eligible or any Sub-Processor from a data subject in respect of their personal data included in the Client Personal Data and shall use all reasonable endeavours to assist the Client with the fulfilment of the Client’s obligation to respond to requests for exercising data subject rights laid down in the GDPR.

7.12 Eligible shall make available to the Client on request all information necessary to demonstrate compliance with this clause 7. and allow for and contribute to audits, including inspections, conducted by an auditor mandated by the Client. Eligible shall immediately inform the Client if, in its opinion, the Client’s instructions with respect to the processing of the Client Personal Data in accordance with clause 7.2 infringe the GDPR or other EU or Member State data protection provisions.

7.13 Eligible shall notify the Client of any request for the disclosure of Client Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

7.14 Subject to clause 7.15, Eligible shall as soon as practicable after the date of termination of this Agreement, return a complete copy of all Client Personal Data by secure file transfer in such a format as notified by the Client to Eligible and delete (and use all reasonable efforts to procure the deletion of) all other copies of the Client Personal Data processed by Eligible or any Sub-Processors on behalf of the Client.

7.15 Eligible and its Sub-Processors may retain Client Personal Data to the extent required by Data Protection Laws and only to the extent and for such period as required by Data Protection Laws and always provided that Eligible shall ensure the confidentiality of all such Client Personal Data, and shall ensure that such Client Personal Data is only processed as necessary for the purpose(s) specified in Data Protection Laws requiring its storage and for no other purpose.

7.16 The Client acknowledges that Eligible is reliant on the Client for direction as to the extent to which Eligible is entitled to use and process the Client Personal Data. Consequently, Eligible will not be liable for any claim brought by a data subject arising from any act or omission by Eligible to the extent that such act or omission resulted from the Client’s instructions or the Client’s use of the Eligible Service.

7.17 For the purpose of this clause 7:
(a) the term “Data Protection Laws” means any applicable law relating to the processing, privacy and use of personal data, as applicable to either party or the Services, including: (vi) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 2018 or the General Data Protection Regulation (EU) 2016/679; (vii) any laws which implement any such laws; (viii) any laws that replace, extend, reenact, consolidate or amend any the foregoing; and (iv) all guidance, guidelines, codes of practice and codes of conduct issued by any relevant supervisory authority relating to such Data Protection Laws (in each case whether or not legally binding). (b) the terms “controller”, “processor”, “data subject”, “personal data”, and “process” shall have the same meaning as set out in the Data Protection Laws; (c) the term “Standard Contractual Clauses” means the Standard Contractual Clauses (processors) approved by the European Commission Decision C(2010)593 or any subsequent version thereof
released by the European Commission (which will apply automatically); and (d) the term “EEA” means the member states of the European Union (“Member States”) together with Iceland, Norway, and Liechtenstein.

8. CONFIDENTIAL INFORMATION

8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the 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 the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.

8.2 Each party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.

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

8.4 Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.

9. NON-SOLICITATION

9.1 Each party hereby agrees that it shall not, and shall procure that no member of its Group shall, during the Term and for a period of 12 months thereafter, employ or solicit or offer employment or engagement to any employee engaged by the other (whether on a temporary basis or otherwise) provided that neither party shall be restricted from recruiting.

10. FEES AND PAYMENT

10.1 As consideration for Eligible providing the Eligible Service, the Client will pay the Fees as set out in the Agreement, or as otherwise agreed between the parties in writing. Client represents and warrants and commits to confirm, on a monthly basis, the number of customers, using the Eligible Service, that have completed mortgages in the preceding month.

10.2 Eligible shall submit to the Client an invoice in respect of the Fees on the dates set out in the Agreement, and the Client shall pay each invoice within 15 days of receipt.

10.3 If Eligible has not received payment in full within 15 days of the due date, and without prejudice to any other rights and remedies available to Eligible, interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the due date for payment of the relevant Fees, commencing on the due date for payment and continuing until the Fees have been paid in full, whether before or after judgment.
(a) Eligible may, without liability to the Client, suspend or temporarily disable all or part of the Client’s access to the Eligible Service and Eligible shall be under no obligation to provide any access to the Eligible Service while the relevant sum remains unpaid; and (b) The Client shall reimburse Eligible for all reasonable costs and expenses (including reasonable lawyer’s fees) incurred by Eligible in collecting any overdue amounts.

10.4 All amounts and Fees stated or referred to in the Agreement:
(a) are payable in the currency specified in the Agreement or otherwise stipulated by Eligible; and (b) are exclusive of VAT unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees. Each party shall send the other a VAT invoice if it is requested to do so.

10.5 Unless otherwise agreed between the parties in writing, Eligible may increase the Service Fees upon giving at least 30 days’ notice in writing to the Client, such increase to take effect from the expiry of such notice (such notice to expire
no earlier than the end of the Initial Term). If the Client is unhappy with the increase, the Client may give notice to terminate the Agreement by providing at least 30 days’ written notice to Eligible, such notice to expire no earlier than the end of the Initial Term. The Fees will not increase during the notice period.

11. AVAILABILITY AND SUPPORT

11.1 Eligible will use commercially reasonable endeavours to make the Eligible Service available with an uptime rate of 99%, except for:
(a) planned maintenance for which at least 48 hours’ written notice will be given; and (b) unscheduled maintenance for critical and/or emergency issues occurring during normal business hours (UK time) or otherwise, for which Eligible will use reasonable endeavours to give the Client advance notice.

11.2 Eligible will, as part of the Eligible Service, use reasonable endeavours to provide a level of support (via telephone and e-mail) that is appropriate to the nature of any issues requiring support during normal business hours (UK time), and such support shall be provided at no additional charge to the Client. The Client shall provide all support reasonable required by Eligible to perform its obligations under this clause 11, including providing reasonably detailed descriptions of issues and updates on the performance of the Eligible Service and such access to its site and computer systems as Eligible may reasonably require.

12. SUSPENSION AND TERMINATION

12.1 Without prejudice to any other rights or remedies available to it, either party may terminate the Agreement at any time by giving to the other 30 days’ written notice, such notice to expire no earlier than the end of the Initial Term. For the avoidance of doubt, Eligible’s Single of Contact to receive such a notice is support@eligible.ai.

12.2 Without prejudice to any other rights and remedies available to Eligible, Eligible may terminate the Agreement by written notice to the Client with immediate effect, or such notice as Eligible may in its sole discretion elect to give, if the Client:
(a) infringes Eligible’s intellectual property rights in the Eligible Service; and (b) is in breach of clause 6.2.

12.3 Without prejudice to any other rights and remedies available to Eligible, Eligible may immediately suspend the Client Account (in whole or in part), any Authorised User accounts and any Authorised User’s right to access and use the Eligible Service without giving prior notice to the Client, if the Client is in material or persistent breach of any of the terms of the Agreement and for the purposes of this clause 12.3, the parties acknowledge that any breach of clause 6.2 will be a material breach of the Agreement.

12.4 Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving written notice to the other party, if that other party:
(a) is in material (which for the avoidance of doubt shall include any failure a pay an sum due) or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within 30 days after receiving written notice requiring it to remedy the breach; or (b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

12.5 On termination of the Agreement for any reason:
(a) all rights and licenses granted under the Agreement shall immediately terminate and the Client’s right to access and use the Eligible Service will end; (b) all Authorised Users’ rights to use the Eligible Service will end; and (c) each party shall return to the other party or (at the other party’s request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information
to the extent required by law or any applicable governmental or regulatory authority).

12.6 Where the Agreement is terminated by the Client under clause 12.4, Eligible shall refund any pre-paid Fees on a pro rata basis.

12.7 Eligible shall permit the Client to download any Client Data from the Eligible Service for a period of 14 days after the expiry or termination of the Agreement. Thereafter, Eligible may delete any Client Data at any time. Eligible may retain Client Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Eligible may deem necessary to prosecute or defend any legal claim (in which case Eligible may retain Client Data for a reasonable period of time pending resolution of such obligation or issue) provided that nothing in this clause 12.7 shall in any way prejudice Eligible’s obligations under clauses 7.14 and/or 12.5(c).

12.8 Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.

12.9 Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of this Agreement shall survive and continue in full force and effect.

13. LIMITED WARRANTY

13.1 Eligible undertakes to make the Eligible Service available as set out in clause 11.1, and the Client’s sole and exclusive remedy, and Eligible’s sole liability, with respect to any failure by Eligible to provide the Eligible Service in accordance with clause 11.1 is for Eligible to use commercially reasonable efforts to repair the affected part of the Eligible Service so that it is available in accordance with clause 11.1.

13.2 Otherwise than as expressly set out in this Agreement, the Eligible Service is provided on an “AS IS” basis and Eligible gives no representations, warranties, conditions or other terms of any kind in respect of the Eligible Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.

13.3 Eligible does not warrant that the Eligible Service will be compatible with any Authorised User’s browser, mobile device or computer system.

13.4 Except as expressly provided for in the Agreement:
(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and (b) Eligible will not be responsible for any interruptions, delays, failures, or non-availability affecting the Eligible Service or the performance of the Eligible Service which are caused by third party services (including Third Party Sites), errors or bugs in third party software, hardware, or the Internet on which Eligible relies to provide the Eligible Service, or any changes to the Eligible Service made by or on behalf of the Client, and the Client acknowledges that Eligible does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.

14. ELIGIBLE’S LIABILITY

14.1 Subject to clause 14.2, Eligible will not be liable to the Client, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement which is a special, indirect or consequential damage or loss, cost or expense.

14.2 Nothing in the Agreement excludes or limits a party’s liability for death or personal injury caused by the other party’s negligence, or for fraud or fraudulent misrepresentation.

14.3 Eligible’s total liability in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, arising under or in connection with the Agreement shall in all circumstances be limited to a sum equal to 120% of Fees paid by the Client in the 6 months prior to the event giving rise to the claim.

15. CHANGES TO ELIGIBLE SERVICE

The Client recognises that Eligible shall continue to add new features and services to the Eligible Service. The Client therefore agrees that the Eligible Service may add new features and make improvements to the Eligible Service from
time to time and no warranty, representation or other commitment is given to the extent of changes made to the Eligible Service.

16. GENERAL

16.1 Written communications
Applicable laws may require that some of the information or communications that Eligible sends to the Client should be in writing. When using the Eligible Service, the Client accepts that communication with Eligible will mainly be electronic (unless it is a notice served pursuant to clause 16.2). Eligible will contact the Client by e-mail or provide the Client with information by posting notices on the Eligible Service (unless it is a notice served pursuant to clause 16.2). For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Eligible provides to the Client electronically comply with any legal requirement that such communications be in writing provided always that any notice served under this contract shall be posted in accordance with clause 16.2.

16.2 Notices
All notices given under this Agreement must be given to each party’s Single Point of Contact at either the email address or the postal address provided by one party to the other (or such other address as notified by a party to the other from time to time). Notice will be deemed received and properly served 24 hours after an email is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and in the case of an email that such email was sent to the specified email address of the addressee.

16.3 Transfer of any rights and obligations
The Client may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Client’s rights or obligations arising under the Agreement, without obtaining prior written consent from Eligible.

16.4 Events outside a party’s control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from the following:
(a) acts of God or nature, explosion, flood, tempest, other atmospheric conditions, fire or other natural disaster; (b) war, threat of war, terrorist acts or threat of terrorist acts, sabotage, insurrection, civil disturbance or requisition; (c) governmental action (other than legislative or regulatory change); and/or (d) strikes, lock-outs or other industrial actions or trade disputes (other than in each case involving the employees of the affected party).
Notwithstanding the foregoing, nothing in this clause shall excuse the Client from any payment obligation under the Agreement.

16.5 Third party rights
Other than as expressly stated in the Agreement, a person who is not a party to this Agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) Act 1999.

16.6 Waiver
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

16.7 Severability
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.

16.8 Law and jurisdiction
This Agreement shall be governed by, and construed in accordance with, English law, and each party hereby submits to the exclusive jurisdiction of the courts of England.

SCHEDULE 1

DETAILS OF THE PROCESSING OF CLIENT PERSONAL DATA

This Schedule 1 includes certain details of the processing of Client Personal Data as required by Article 28(3) of the GDPR.

Subject matter and duration of the processing of Client Personal Data
The subject matter and duration of the processing are as set out in the Agreement.

The nature and purpose of the processing of Client Personal Data
The processing of Client Personal Data provided by the Client to Eligible in connection with the Client’s and its Authorised Users’ use of the Eligible Service.

The types of Client Personal Data to be processed
Contact information, financial information and credit history, usage information, non-traditional identifiers (such as IP address), and any other personal data the Client, its Authorised Users (including the Client’s Customers) upload to the Eligible Service.

The categories of data subject to whom the Client Personal Data relates
Authorised Users (including the Client’s Customers)

The obligations and rights of the Client
The obligations and rights of the Client are as set out in clause 7 of the Agreement.

SCHEDULE 2

TECHNICAL AND ORGANISATIONAL SECURITY MEASURES

Eligible maintains internal policies and procedures, or procures that its Sub-Processors do so, which are designed to:
a) secure any personal data processed by Eligible against accidental or unlawful loss, access or disclosure;
b) identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data processed by Eligible;
c) minimise security risks, including through risk assessment and regular testing.
Eligible will and will use reasonable efforts to procure that its Sub-Processors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.
Eligible will and will use reasonable efforts to procure that its Sub-Processors periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.