Terms and Conditions

Wavedata Shortages Subscription Services Client Terms and Conditions (these “Terms and Conditions”)

1.      DEFINITIONS and Interpretation

In this Agreement:

1.1    the following terms shall have the following meanings unless the context otherwise requires:

this “Agreement”

these Terms and Conditions (as updated by Wavedata Shortages in accordance with its terms) together with the relevant Subscription Form;

 

“Business Day”

any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London, England;

 

“Client”

the client which agrees with Wavedata Shortages to receive the Service, as identified on the Subscription Form;

 

“Client Data”

any data about the Client (and/or its employees and officers who are permitted access to the Service pursuant to this Agreement) obtained by Wavedata Shortages, including related to the use of and access to the Service;

 

“Commence-ment Date”

 

 

the date on which the Client registers for the Service through submission of the Subscription Form to Wavedata Shortages;

“Confidential

Information”

any information in any form or medium obtained by or on behalf of one Party from or on behalf of the other Party in connection with this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information (and Wavedata Shortages’ “Confidential Information” shall include the Content);

 

“Content”

any information and materials (including works of authorship, files, processes, systems, ideas, know-how, concepts, methodologies, flowcharts, manuals, data, databases, database structures, content, descriptions, documents, notes, records, results, reports, text, research, lists, diagrams, artwork, designs, sketches, models, photographs, drawings, plans, specifications, images, logos, styles, graphics, names, devices, domain names and marks (in whatever form and on whatever media)) provided by Wavedata Shortages from time to time as part of the Service, and which may include Third Party Input;

 

“Data Protection Laws”

all applicable data protection laws in relation to this Agreement, including the General Data Protection Regulation EU 2016/679 (“GDPR“) and any national laws or regulations constituting a supplement, replacement or successor data protection regime to that governed by GDPR (including the UK’s Data Protection Act 2018);

 

“Data Protection Particulars”

the particulars describing Wavedata Shortages’ processing of Client Data under or pursuant to this Agreement, as set out in Schedule 1;

 

Fee

the subscription fee payable by the Client to access the Service during a Subscription Period as may be initially set out in the Subscription Form, a Client’s Subscription Account and/or the Website, or as updated by Wavedata Shortages from time to time, together with any other sums due to Wavedata Shortages under this Agreement;

 

“Free Trial Period”

 

the time period specified by Wavedata Shortages from time to time in which the Client may access the Service without charge subject to the terms and conditions of this Agreement;

 

“Intellectual Property Rights”

copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;

 

“Liability”

has the meaning given to it in Clause 9.9.1;

 

“Party”

 

Wavedata Shortages or the Client;

 

“Service”

the service under which Wavedata Shortages provides access to the Content to its clients through a variety of online subscription choices, as updated from time to time and specified on the Website;

 

“Subscription Account”

 

an online account which is created by Wavedata Shortages for each Client on receipt of a Subscription Form and which provides the Client with access to the Service and Content;

 

“Subscription Form”

 

the online registration form as stipulated on the Website which describes Wavedata Shortages’ client;

 

“Subscription Period”

 

the subscription period of 28 days (or such other period) commencing on the Commencement Date or on the expiry of the previous subscription period;

 

“Third Party Input”

any input or information originating from a third party (such as a wholesaler or pharmacy);

 

“Wavedata Shortages”

WaveData Limited trading as Wavedata Shortages, a company registered in England and Wales under registration number 03998025 with registered office at 146 New London Road, Chelmsford, England CM2 0AW;

 

“Website”

Wavedata Shortages’ website at https://shortage.wavedata.net; and

 

“Year”

a period of 12 months commencing on the Commencement Date, or each subsequent period of 12 months commencing on an anniversary of the Commencement Date.

 

1.2    References to Clauses and Schedules are to clauses and schedules of these Terms and Conditions. These Terms and Conditions include the Schedules.

1.3    The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.

1.4    Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership.

1.5    References to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 13) includes in electronic form.

1.6    References to “includes” or “including” or like words or expressions shall mean without limitation.

1.7    References to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

2.      SUBSCRIPTION SERVICES

2.1    In consideration of, and subject to, the timely payment of the Fee and the Client’s compliance with the terms of this Agreement, Wavedata Shortages shall provide the Client during the term of this Agreement with access to the Service and the Content for use in the normal course of the Client’s internal business purpose (and not for any external use).

2.2    During each Subscription Period, the Client shall allow no more than a maximum of five persons (which shall be strictly limited to employees or officers of the Client only) to access the Service on its behalf. The Client shall have full Liability for the actions of those persons accessing and/or using the service on its behalf, including ensuring full compliance with the terms and conditions of this Agreement.

2.3    If the Client would like to make access to the Service available to any more persons, including additional employees, then it shall first contact Wavedata Shortages to discuss and pay for any additional Fees, and the Client shall pay any additional Fees prior to such access.

2.4    The Client shall not allow anyone other than as authorised by Wavedata Shortages to access the Service or the Content, and the Client shall take all reasonable steps to prevent such access.  The Client shall not use the Content on an outsourcing or service bureau or application service provider basis.

2.5    Except to the extent provided by law, the Client shall not reproduce (or copy, publish, post, broadcast, transmit, disseminate, sell, license, distribute, circulate or make available) any part of the Service or the Content for any purpose, other than as expressly permitted in this Agreement unless Wavedata Shortages gives its express prior written consent.  Any reproduction shall be the property of Wavedata Shortages. 

2.6    The Client shall only ever use the most up-to-date version of the Content as is available on the Website and/or through its Subscription Account and shall not use previous versions of the Content. 

2.7    Subject to Clause 2.6, the Client shall ensure that Wavedata Shortages’ proprietary notice (e.g. “© Wavedata Shortages [date stipulated by Wavedata Shortages]” All rights reserved”) or, where indicated, the notice of Wavedata Shortages’ licensors must clearly appear in all electronic or hard copies of any Content or extracts from the Website.

2.8    Any rights in respect of the Content or Service not expressly granted in these Terms and Conditions by Wavedata Shortages are reserved.

2.9    The Third Party Input belongs to the third party supplier.  Wavedata Shortages may change the rights of the Client to use the Third Party Input from time to time, if the rights of Wavedata Shortages are changed by the third party.  Wavedata Shortages shall not have any responsibility or Liability for the Third Party Input or anything based on the Third Party Input. 

2.10  If the Client is in breach of this Agreement or this Agreement has been suspended or terminated, then Wavedata Shortages may disable access to any of the Service at any time and without notice whether by use of a code, by disabling access on its servers, by remote access or by physical attendance at any place where the Service is being accessed from or otherwise.

3.      SUBSCRIPTION ACCOUNT

3.1    To use and access the Service, the Client must have access to the Internet and register for a Subscription Account. In order to create a Subscription Account, the Client must select a password. The Client shall be responsible for the safekeeping of its password and maintaining its confidentiality.

3.2    The Client shall only submit the Subscription Form to Wavedata Shortages as an organisation or individual seeking to use the Service and Content for internal business purposes only. The Services are not intended for consumer use or anyone under the age of 18 years old.

3.3    Subject to Clause 2.2, the Client shall not permit any other person to access or use the Service and/or its Subscription Account using its log-in or password credentials.

3.4    The Client shall inform Wavedata Shortages immediately of any unauthorised use of any password, Subscription Account or other breach of security of which the Client becomes aware.

3.5    Wavedata Shortages may suspend the Client’s access to the Service and/or its Subscription Account if it reasonably believes the access to be unauthorised.  Wavedata Shortages shall inform the Client in writing that it is doing so.

3.6    The Client may request to change the selected Service at any time through its Subscription Account. Any request to change a selected Service shall take effect from expiry of the Subscription Period in which the request is made.

3.7    Wavedata Shortages reserves the right at any time to delete any Subscription Account for which the Free Trial Period has ended and no Service has been selected on a paid-for basis by the Client within a reasonable time of expiry of the Free Trial Period, or Wavedata Shortages may in such circumstances terminate this Agreement with immediate effect without any Liability or notice to the Client for such termination or deletion.

4.      Access and Use of the Service

4.1    Wavedata Shortages may update the Service and the Content from time to time.  Wavedata Shortages may make reasonable changes to the Service features available to the Client from time to time.

4.2    The Client shall:

4.2.1     not interfere with any other person’s use of the Service or otherwise act in a way that negatively affects another client’s or user’s use of the Service;

4.2.2     not cause any of the Service to be interrupted, damaged, rendered less efficient or in any way impaired; and

4.2.3     not do anything contrary to Wavedata Shortages’ interests.

5.      Warranty

5.1    Wavedata Shortages warrants that:

5.1.1     it has the right to enter into this Agreement and to grant the Client a right to access and use the Service; and

5.1.2     it shall use its reasonable skill and care in providing the Service.

5.2    Wavedata Shortages does not warrant that the Service will meet the Client’s present or future specific individual needs or requirements or that the Service will be complete, error-free, wholly accurate or up-to-date or that it will be delivered without interruption, fault or error.  The Client also acknowledges that Wavedata Shortages is reliant on any provider of any Third Party Input and also that there may be a time delay between new Third Party Input arising and the Content being updated.  The Service is intended to act as a useful guide.  If the Client has any critical needs or requires bespoke advice, Wavedata Shortages recommends that the Client obtains specific and bespoke advice (whether as a separate service from Wavedata Shortages under another agreement or through another route).

5.3    The Service is designed to provide 99% availability to users and Wavedata Shortages shall use its reasonable commercial endeavours to maintain and monitor the Service so that the Service has 99% availability at all reasonable times (other than maintenance).  It may be necessary to suspend or restrict the Service at any time for any reason including for any urgent or planned maintenance.  In addition, Wavedata Shortages does not control the Internet or access to it.  Accordingly, Wavedata Shortages does not warrant that the Service will be uninterrupted or error-free or that it will be available at any particular speed. 

5.4    Although Wavedata Shortages uses firewall, virus and content filtering software, Wavedata Shortages cannot guarantee 100% security and shall not have any Liability for damage to, unauthorised access to, or viruses or other code that may affect, the Content or any computer equipment, software, data or other property as a result of the Client’s access.  Wavedata Shortages shall also not have any Liability for the actions of third parties in breaching any security measures.

5.5    Other than the warranties given in this Clause 5, to the fullest extent permitted by law, any warranty, guarantee, representation, condition or other term (whether express or implied by statute, common law or otherwise) is hereby excluded.

6.      FREE TRIAL

6.1    Wavedata Shortages may, at its sole discretion, offer the Client access to the Service and Content on a free trial basis for the Free Trial Period in order for the Client to trial the Service.

6.2    Free trial eligibility is determined by Wavedata Shortages at its sole discretion and Wavedata Shortages may limit eligibility, including to prevent free trial abuse. Wavedata Shortages reserves the right to revoke the free trial at any time and place any Subscription Account on hold in the event that Wavedata Shortages determines that the Client may not be eligible or may be abusing the free trial in any way.

6.3    Wavedata Shortages may use information such as device ID, method of payment or a Subscription Account email address to determine eligibility for a free trial of the Service.

6.4    On expiry of the Free Trial Period (if any), Wavedata shortages shall request that the Client selects a Service on a paid-for basis from the options available at that time as specified on the Website and/or a Subscription Account. The Client shall promptly select and pay for its selected Service through its Subscription Account or inform Wavedata Shortages that it wishes to terminate this Agreement through selection of the cancellation option in its Subscription Account. 

7.      Fees and Payment

7.1    The Client shall pay the Fee for the initial Subscription Period on selection of a Service on a paid-for basis. The Fees for subsequent Subscription Periods shall be payable every 28 days in advance.  

7.2    All Subscription Periods shall be automatically renewed unless terminated in accordance with Clause 12 or otherwise under these Terms and Conditions.

7.3    Wavedata Shortages may update the Fees from time to time by providing at least 28 days’ prior written warning to the Client.  Such update shall take effect on the first day of a Subscription Period.

7.4    All sums due to Wavedata Shortages are exclusive of VAT and other duties or taxes (if applicable) which the Client shall pay to Wavedata Shortages in addition at the same time as payment of the Fees.

7.5    Payment shall be in the currency of England from time to time.

7.6    Payment of all sums due under this Agreement shall be made by the Client without any set-off, deduction or withholding whatsoever.

7.7    Wavedata Shortages shall issue invoices to the Client for the Fees.  Unless agreed otherwise by Wavedata Shortages in writing, all invoices shall be sent to the Client the next Business Day following successful renewal of a Subscription Period.

7.8    The Client shall pay Wavedata Shortages by direct debit via Wavedata Shortages’ third party payment provider (as appointed by Wavedata Shortages from time to time) on the closest Business Day to (but not after) the renewal date of each Subscription Period. The Client shall ensure that it has adequate funds in its selected bank account in advance of the expiry and planned renewal of a Subscription Period.

7.9    No payment shall be considered to be paid until it is received in cleared funds.  The Client shall not have a right to access or use the Service until it has paid the Fees and taxes applicable in full.  

7.10  If the laws of any part of the territory where the Client is based requires the Client to withhold tax on any payment which the Client is obliged to make to Wavedata Shortages under this Agreement, the Client shall:

7.10.1   obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Wavedata Shortages;

7.10.2   do all such other things and take such other steps as may be reasonably required to enable Wavedata Shortages to obtain any tax credit which may be available to it; and

7.10.3   in the event that any taxes deducted cannot be reclaimed, make up to Wavedata Shortages any shortfalls in payment attributable to such tax deductions.

7.11  If the Client fails to pay any part of any monies due to Wavedata Shortages, Wavedata Shortages may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or by-law) suspend the Client’s access to the Service with immediate effect until Wavedata Shortages receives the outstanding Fees in full.

8.      DATA PROTECTION

8.1    In performing this Agreement, the Client and Wavedata Shortages shall each:

8.1.1     comply with all applicable Data Protection Laws; and

8.1.2     procure that its employees, officers, directors, contractors, consultants, subcontractors and suppliers, comply with all applicable Data Protection Laws.

8.2    The Parties agree that, to the extent possible, the Client shall ensure that any data is anonymised and does not contain any Personal Data, or that Personal Data is minimised, before it is provided to Wavedata Shortages.  The Parties agree and acknowledge that to the extent that the data provided by the Client to Wavedata Shortages contains Personal Data (which may include Client Data) and in respect of Wavedata Shortages’ obligations under this Agreement as to any such “Personal Data”, Wavedata Shortages is a “Processor” and the Client is the “Controller” (as those terms, together with the terms “Processing” and “Process” and “Data Subject” are defined in the Data Protection Laws), and the following provisions in this Clause 8 apply in respect of such Personal Data. 

8.3    Wavedata Shortages shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Service under this Agreement and in accordance with the Data Protection Particulars, and in accordance with the Client’s documented instructions from time to time and shall not process the Personal Data for any other purpose.  This is unless required otherwise by applicable laws in the United Kingdom (of England, Wales, Scotland and Northern Ireland) or the European Economic Area; in such a case, Wavedata Shortages shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

8.4    Wavedata Shortages reserves the right to suspend provision of any part of the Service to a particular person at the Client (including any employees or officers) until that person shows to Wavedata Shortages’ reasonable satisfaction that they are authorised to be receiving the relevant Personal Data or other Client Data on behalf of the Client.  Notwithstanding the foregoing, Wavedata Shortages shall be entitled to rely on the instruction of any person whom Wavedata Shortages reasonably believes to be authorised on behalf of the Client. 

8.5    In accordance with the Client’s reasonable request, Wavedata Shortages shall provide sufficient guarantees to the Client as to Wavedata Shortages’ Processing of the Personal Data and in accordance with Data Protection Laws. 

8.6    Wavedata Shortages shall promptly comply with any reasonable request from the Client requiring Wavedata Shortages to provide details of the Personal Data or amend, transfer or delete the Personal Data (whether or not at the Client’s request, or in response to a Data Subject’s rights under Data Protection Laws).

8.7    Wavedata Shortages warrants that, where it processes Personal Data, it shall take appropriate security measures to conform to Data Protection Laws, including appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to the risk in accordance with Data Protection Laws.  Wavedata Shortages shall respond to reasonable requests from the Client to provide information as to Wavedata Shortages’ technical and organisation measures.

8.8    Wavedata Shortages shall inform the Client immediately in writing if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of, the Personal Data, and within a reasonable time shall provide supporting information with reasonable detail as are reasonably requested by the Client.

8.9    Wavedata Shortages shall assist the Client in ensuring compliance with obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Wavedata Shortages.  Wavedata Shortages’ assistance with the Client pursuant to Articles 32 to 34 of the GDPR shall be at Wavedata Shortages’ cost; the Client shall reimburse Wavedata Shortages upon demand for any reasonable costs incurred by Wavedata Shortages in providing assistance to the Client pursuant to Articles 35 and 36 of the GDPR.

8.10  The Client shall take overall responsibility for any Personal Data breach obligations under Data Protection Laws.  Wavedata Shortages shall conform to the reasonable requirements of the Client in respect of Personal Data breach notification requirements under Data Protection Laws, provided that the Client shall reimburse Wavedata Shortages for any reasonable costs and expenses incurred in doing so (unless the breach was caused by Wavedata Shortages’ fault). 

8.11  Wavedata Shortages shall not transfer the Personal Data outside the United Kingdom (of England, Wales, Scotland and Northern Ireland) or the European Economic Area without the express prior written consent of the Client, except, where necessary, to Wavedata Shortages’ sub-processor(s) who assist with providing support services for Wavedata Shortages. Where any such transfer does take place, Wavedata Shortages shall do so on a basis which complies with Data Protection Laws.

8.12  The Client shall ensure that its instructions and requirements under this Agreement conform with all Data Protection Laws.

8.13  The Client shall be responsible as Controller with providing each Data Subject at the appropriate time with a privacy, transparency or information notice (including describing the data, purpose, legal basis for processing, recipient, duration and the Data Subject’s rights) to ensure fair and lawful processing of the Personal Data in accordance with Data Protection Laws.  If Wavedata Shortages provides the Client with a sample privacy, transparency or information notice, this shall be solely as a matter of convenience; and the Client shall take overall responsibility as Controller.

8.14  The Client agrees that Wavedata Shortages may authorise a third party (sub-processor) to process the Personal Data on behalf of Wavedata Shortages (for the provision of hosting services and support services), provided that:

8.14.1   Wavedata Shortages’ contract with the sub-processor is on terms which fully reflect and do not contradict or override those set out in this Clause 8;

8.14.2   the sub-processor’s rights and obligations in relation to the processing of the Client’s Personal Data terminate automatically on termination of this Agreement for any reason; and

8.14.3   Wavedata Shortages informs the Client in writing of any intended changes concerning the addition or replacement of sub-processors, thereby giving the Client a reasonable opportunity to make known to Wavedata Shortages any concerns that the Client may have.  Wavedata Shortages shall reasonably consider any objections from the Client but shall not be bound to follow the Client’s objections.

8.15  Wavedata Shortages shall allow the Client to conduct audits or otherwise demonstrate compliance at reasonable times and on reasonable prior written warning at the Client’s cost, in order to ensure and demonstrate compliance with Data Protection Laws.  The Client shall reimburse Wavedata Shortages for any reasonable costs associated with such assistance and co-operation. 

8.16  The terms defined in this Clause 8 shall be construed in accordance with any change in definitions in Data Protection Laws from time to time. 

8.17  In the event of any change in a country’s status (including the UK’s departure from the European Union), the Parties shall agree to implement such additional measures to comply with Data Protection Laws (including, if necessary, GDPR clauses that reflect the model contractual clauses).

9.      Limitation of liability

9.1    This Clause 9 prevails over all other Clauses and sets forth the entire Liability of each Party, and the sole and exclusive remedies of the other Party, in respect of:

9.1.1     performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any services or deliverables in connection with this Agreement; or

9.1.2     otherwise in relation to this Agreement or entering into this Agreement.

9.2    Neither Party excludes or limits its Liability for:

9.2.1     its fraud; or

9.2.2     death or personal injury caused by its Negligence; or

9.2.3     any infringement of the other Party’s Intellectual Property Rights or Confidential Information; or

9.2.4     any Liability which cannot be excluded or limited by applicable law.

9.3    Subject to Clause 9.2, each Party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.

9.4    Subject to Clause 9.2, neither Party shall have Liability in respect of any:

9.4.1     indirect or consequential losses, damages, costs or expenses;

9.4.2     loss of actual or anticipated profits;

9.4.3     loss of contracts;

9.4.4     loss of use of money;

9.4.5     loss of anticipated savings;

9.4.6     loss of revenue;

9.4.7     loss of goodwill;

9.4.8     loss of reputation;

9.4.9     ex gratia payments;

9.4.10   loss of business;

9.4.11   loss of operation time;

9.4.12   loss of opportunity; or

9.4.13   loss of, damage to or corruption of, data;

whether or not such losses were reasonably foreseeable or the Party in default or its agents had been advised of the possibility of the other incurring such losses.  For the avoidance of doubt, Clauses 9.4.2 to 9.4.13 apply whether such losses are direct, indirect, consequential or otherwise.

9.5    Subject to Clause 9.2, the total aggregate Liability of each Party for all causes of action arising in each Year shall be limited to the greater of: (a) £1,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by the Client to Wavedata Shortages under this Agreement, in that Year.

9.6    The limitation of Liability under Clause 9.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.

9.7    The Client shall not limit its Liability for failure to pay the Fees.

9.8    The Parties acknowledge that this Clause 9 is fair and reasonable having regard to the Parties’ respective sizes and positions to insure, and with the objective that the Client uses the Service as background only and not to rely on for decisions that could have a costly impact.

9.9    In this Agreement:

9.9.1     “Liability” means liability in or for breach of contract (including liability under any indemnity), tort (whether deliberate or not), Negligence, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract); and

9.9.2     “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).

10.    Confidentiality

10.1  Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:

10.1.1   for the purposes of the proper performance of this Agreement; or

10.1.2   as otherwise permitted by this Agreement; or

10.1.3   with the prior written consent of the other Party.

10.2  Where one Party discloses Confidential Information of the other Party to its representative, employee, officer, user, professional adviser or insurer, it shall do so subject to obligations equivalent to those set out in this Clause 10.  Each Party shall use its reasonable endeavours to ensure that any such representative, employee, officer, user, professional adviser or insurer complies with such obligations.

10.3  The obligations of confidentiality in this Clause 10 shall not extend to any matter which either Party can show:

10.3.1   is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or

10.3.2   was legally in its written records prior to receipt; or

10.3.3   was independently developed by it; or

10.3.4   was independently disclosed to it by a third party entitled to disclose the same.

10.4  If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much notice thereof as practicable and notify and consult with the other Party and, at the other Party’s request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.

10.5  The Parties agree that any breach of this Clause 10 may not be adequately compensated by money damages alone and therefore either Party shall be entitled without proof of special damage, in addition to any other right or remedy available to it (including an action for damages), to the remedies of injunction, specific performance and other equitable relief for any actual, threatened or potential breach.

10.6  Wavedata Shortages may identify the Client as its client and the type of services provided by Wavedata Shortages to the Client, provided that in doing so Wavedata Shortages shall not (without the Client’s prior written consent) reveal any Confidential Information of the Client.

10.7  The obligations of this Clause 10 shall continue after termination of this Agreement for whatever reason.

11.    Intellectual Property Rights

11.1  The Client acknowledges that, as between the Parties, the legal and beneficial interest in Intellectual Property Rights relating to, or developed by Wavedata Shortages or its third party suppliers in connection with, the Service and Content belong to Wavedata Shortages and its licensors.  

11.2  If the Client becomes aware of any improper or wrongful use of the Intellectual Property Rights owned, licensed or used by Wavedata Shortages in relation to the Service, it shall promptly inform Wavedata Shortages of such use.  The Client shall, if requested by Wavedata Shortages, assist Wavedata Shortages in taking any steps in connection with the protection or defence thereof as Wavedata Shortages may determine, the costs of which shall be borne by the Client in respect of its improper or wrongful use, but for all other such use Wavedata Shortages shall bear the reasonable costs thereof.

11.3  The Client shall permit Wavedata Shortages and Wavedata Shortages’ representatives at all reasonable times and on reasonable prior written warning enter such places and inspect such equipment under the Client’s control and monitor the Client’s use of the Services (whether remotely or not) to verify that the Client is complying with the terms of this Agreement and not infringing Wavedata Shortages’ or its licensors’ Intellectual Property Rights. 

12.    Term and Termination

12.1  This Agreement shall commence on the Commencement Date and (subject to earlier termination under this Agreement) shall continue until the end of the Subscription Period and shall automatically renew for successive Subscription Periods unless terminated by:

12.1.1   the Client through selection and confirmation of the cancellation option within its Subscription Account; or

12.1.2   Wavedata Shortages informing the Client of its decision to terminate, including through the Client’s Subscription Account;

with such termination to take effect on the last day of a Subscription Period.

12.2  Either Party may terminate this Agreement by notifying the other Party with immediate effect if:

12.2.1   the other Party is in material breach of any of its obligations under this Agreement which are incapable of remedy;

12.2.2   the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement after having been required in writing to remedy such breach within a period of no less than 30 days; or

12.2.3   the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it is or shall be unable to pay its debts as they come due, or enters into any compromise or arrangement with any of 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), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.

12.3  Wavedata Shortages may terminate this Agreement by notifying the Client with immediate effect if the Client materially (or in Wavedata Shortages’ reasonable opinion persistently) breaches the terms of Clauses 2, 3, 4, 7, 10 or 11.

12.4  Upon termination or expiry of this Agreement:

12.4.1   the Client shall immediately cease accessing the Service and cease using any password in relation to the Service, and procure that its employees and officers do the same; and

12.4.2   each Party may at its option require the other Party to promptly delete the Confidential Information of the Party from any computer disks, tapes, memory, storage or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any materials allowing access to the Service.  Each Party may require an authorised representative of the other Party to provide a written declaration, signed by an officer or other authorised individual, stating that there has been full compliance with this Clause 12.4.2.

12.5  Termination or expiry of this Agreement will be without prejudice to any other rights or remedies which the Parties may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either Party nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.

13.    Notices

13.1  Any notice required or authorised to be given under this Agreement shall be in writing and served by personal delivery or by recorded delivery or overnight courier or by facsimile addressed to the relevant Party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant Party to the other Party for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other Party.

13.2  Any notice so given by recorded delivery or overnight courier shall be deemed to have been served two Business Days after the same shall have been despatched and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answerback signal received.

14.    Force Majeure

14.1  Wavedata Shortages shall not have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control (“Event of Force Majeure“), regardless of whether the circumstances in question could have been foreseen. 

14.2  Wavedata Shortages agrees to use its reasonable commercial endeavours to inform the Client upon becoming aware of an Event of Force Majeure. 

14.3  Wavedata Shortages’ provision of the Service shall be suspended during the period that the circumstances of the Event of Force Majeure persist. 

14.4  If the Event of Force Majeure continues without a break for more than one Subscription Period, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall have any Liability by reason of such termination.

15.    Assignment

15.1  Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Agreement, Wavedata Shortages may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company.  Wavedata Shortages shall promptly give notice to the Client of any such assignment.

15.2  The Client shall not (or purport to) assign, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Wavedata Shortages (such consent not to be unreasonably withheld or delayed).

16.    Agreement Terms

16.1  The Parties may agree for Wavedata Shortages to provide other services to the Client, in which case those other services will be covered by a separate agreement between the Parties.

16.2  This Agreement contains all the terms agreed among the Parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.  No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement.  Neither Party shall have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that Party’s only remedies shall be for breach of contract as provided in this Agreement.

16.3  This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.

16.4  The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Client whether such terms and conditions are contained in the Client’s documents or otherwise.

16.5  Wavedata Shortages may update these Terms and Conditions by providing the Client with an updated copy of these Terms and Conditions through the Client’s Subscription Account. Unless the Client terminates this Agreement through cancellation of the Service through its Subscription Account, the updated Terms and Conditions shall take effect at the beginning of the next consecutive Subscription Period to that in which the updated Terms and Conditions are provided.

16.6  Subject to Clause 16.5, no change to the specific terms of this Agreement shall be binding unless it is agreed in writing by both Parties.

16.7  If the Client provides Wavedata Shortages with a purchase order, this shall be purely for the Client’s administrative purposes only and shall not form part of this Agreement.

16.8  This Agreement shall be legally formed and the Parties shall be legally bound when Wavedata Shortages creates a Subscription Account for the Client.  In any event, the use or access by the Client or its employees or officers of the Service shall constitute acceptance of these Terms and Conditions.

17.    Miscellaneous

17.1  The relationship of the Parties is that of independent contractors dealing at arm’s length.  Nothing in this Agreement shall constitute the Parties as partners, joint ventures or co-owners, or constitute either Party as the agent, employee or representative of the other Party.

17.2  Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Agreement or at law.

17.3  If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.

17.4  This Agreement does not and is not intended to confer any rights to any third party.  A person who is not a Party has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

17.5  This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or its formation, shall be governed by, and construed in accordance with, the laws of England.

17.6  If both Parties are domiciled in the European Union or the United Kingdom, then subject to Clause 17.7, the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its subject matter or its formation (including non-contractual disputes or claims).

17.7  If both Parties are domiciled in the European Union or the United Kingdom, but as a consequence of any change in national or international law, judgments of the courts of England shall not be automatically enforceable in the jurisdiction in which the Client is located, or such a change in law is planned or reasonably foreseeable, Wavedata Shortages shall have the right to commence and pursue arbitration proceedings against the Client under the LCIA Rules to settle any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its formation (including non-contractual disputes or claims). The LCIA Rules are deemed to be incorporated by reference into this Clause 17.7. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

17.8  If one or more of the Parties is domiciled outside of the European Union and the United Kingdom, any claim, dispute or matter of difference which may arise out of or in connection with this Agreement or its subject matter or its formation (including non-contractual disputes or claims) shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules. Those Rules are deemed to be incorporated by reference into this Clause 17.8. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

17.9  All dealings, correspondence and contacts between the Parties shall be in English.

 

 

Version: 001. April 2019

 

Schedule 1

 

Data Protection Particulars

 

A.            Subject Matter of Data Protection

A.1.      To provide the Client with access to the Service and Content in an accessible online format.

B.            Duration of Data Protection

B.1.      Client Data is Processed during the Subscription Period and for up to 2 years afterwards, unless the Client requires Wavedata Shortages to remove access to it beforehand. 

C.            Nature and purpose of the Processing

C.1.      To provide the Client with access to the Service and Content in an accessible online format.

D.            Type of Personal Data

D.1.      The Client’s name, username, password, email address, telephone number, searches run by the Client using the Content, IP address, cookie data, login times and Client’s historic search reports.

E.             Categories of Data Subjects

E.1.       Client i.e. employees or authorised representatives of the Client.

F.             Obligations and rights of Data Controller

F.1.       As set out in this Agreement.