MASTER SERVICES AGREEMENT
BY CHECKING THE “I ACCEPT” BOX DISPLAYED AS PART OF THE REGISTRATION PROCESS OR SIGNING A GOODLORD ORDER FORM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GOODLORD ONLINE TENANCY MANAGEMENT SERVICES AND VARIOUS ADDITIONAL SERVICES PROVIDED THEREBY (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT CHECK THE “I ACCEPT” BOX OR SIGN THE GOODLORD ORDER FORM AND YOU MAY NOT USE THE SERVICE. IN THIS AGREEMENT, GOODLORD AND YOU, THE CUSTOMER, ARE EACH REFERRED TO AS A “PARTY” AND ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” (defined below)
This Master Services Agreement and the Terms and Conditions contained herein ("Agreement"), effective as of the date that the customer has clicked "I Accept" in conjunction with registering to access the Goodlord Services ("Effective Date"), is by and between the customer ("Customer") and Oh Goodlord Limited, a private limited company organised and existing under the laws of England and Wales (company number 8933499), with its registered office at Floor 2, 32 Leman Street, London E1 8EW ("Goodlord"). All capitalised terms used herein not otherwise defined in context shall have the meanings set forth in Clause 11 hereof. The Parties agree as follows:
1.Customer’s Use of the Service.
1.1 Provision of the Service. Goodlord shall make the Service available during the Term in a professional, competent manner in accordance with this Agreement and the Documentation to Customer. The Service will be provided via an online, web-based service and/or mobile service, including associated offline components, provided by Goodlord via http://www.Goodlord.co and/or other designated websites and applications.
1.2 Customer Obligations. Through the online and/or mobile interfaces made available by Goodlord to Customer, Customer may access and enable access of the Service for use by Authorised Parties solely for the internal business purposes of Customer and its Affiliates in accordance with the Documentation and not for the benefit of any third parties other than Authorised Parties. Customer is responsible for all Authorised Parties' use of the Service and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality and legality of all Customer Data, as defined in Clause 5 below, including without limitation for providing all relevant notices to individuals and obtaining all relevant consents when required by applicable law; and (b) prevent unauthorised access to, or use of, the Service, and notify Goodlord promptly of any such unauthorised access or use of which it becomes aware. Customer shall not: (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material or Malicious Code, including material that violates privacy rights; (iii) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering (and for the avoidance of doubt, Authorised Parties' access to the Service shall not fall under this subsection (iii) if Customer is cross-charging a fee, as long as Customer is not acting as a reseller of the Service on the market); (iv) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation; (v) interfere with or disrupt the integrity or performance of the Service in whole or in part or third-party data contained therein; (vi) attempt to gain unauthorised access to the Service in whole or in part or its related systems or networks; (vii) permit direct or indirect access to or use of the Service in whole or in part in a way that circumvents a contractual usage limit, or use the Service to access or use any of Goodlord's intellectual property except as permitted under this Agreement, an Order Form, or the Documentation; (viii) copy the Service or any part, feature, function or user interface thereof; (ix) frame or mirror any part of the Service, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (x) access the Service in whole or in part in order to build a competitive product or service or to benchmark with a product or service not developed or provided by Goodlord, or (l) reverse engineer the Service in whole or in part (to the extent such restriction is permitted by law). Customer’s or an Authorised Parties' intentional violation of the foregoing, or any use of the Service in breach of this Agreement, Documentation or Order Forms, that in Goodlord's judgment imminently threatens the security, integrity or availability of the Service or any other products and/or services connected to Goodlord, may result in Goodlord’s immediate suspension of the Service. When using the Service, Customer shall designate a maximum number of named contacts to request and receive support services from Goodlord ("Named Support Contacts"). Named Support Contacts must be trained on the Goodlord product(s) for which they initiate support requests. Customer shall be liable for the acts and omissions of all Authorised Parties and its Affiliates relating to this Agreement.
2.1 Price for Services. The price of any Services obtained from Goodlord will be as quoted on the website at the time you confirm your order (usually by clicking the "Pay Now" button) subject only to any inadvertent technical error for which we will not be liable. If you subsequently amend your order to add additional services, the prices charged for new services which were not in your original order will be the prices quoted at the time you confirm your amended order. Please note that as promotions are offered for a limited period of time subsequent amendments to your order may mean that certain promotions are no longer being offered.
2.2 Taxes. Goodlord's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Goodlord has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Goodlord will invoice Customer and Customer will pay that amount unless Customer provides Goodlord with a valid tax exemption certificate Authorised by the appropriate taxing authority. For clarity, Goodlord is solely responsible for taxes assessable against it based on its income, property and employees.
2.3 Payment for Services. Payments to Goodlord must be made by direct debit.
2.4 Pre-Authorization. Authority for payment will be requested from your card issuer between the time of your order being placed and when Services are delivered. This is done by 'reserving' against the card you have used for payment. The amount that is ‘reserved’ will either be the estimated amount of your order or £1. That amount is not spent by you until we 'debit' your card with the price of the services you access, and the latter happens prior to our delivery of Services to you. We reserve the right to cancel your order if we are refused authority for payment or reasonably believe that payment will be refused at any stage.
2.5 Failed Payments. You agree to compensate us in full against all reasonable costs expenses and outgoings incurred by us in obtaining payments from you in the event a failed payment occurs. This may include an administration charge of not less than £20. We may at any time after a failed payment has occurred ask a debt collection agency to collect payment from you.
2.6 Advertising Fees. To the extent that Customer and Goodlord agree that Goodlord or its affiliates may advertise products and services to Customer's clients through functionality embedded in the Service, Goodlord will pay Customer a fee in respect of such advertising, provided that such fee will not be a commission or otherwise based on the value of the products or services sold. With respect to such advertising:
(i)Customer will display such advertising on its iteration of the platform in the form provided and shall not modify, emphasize or obscure any thereof;
(ii)Customer's role is limited to display of advertising and Customer will not provide any other reference to any regulated products or advise its clients in relation to such advertising; and
(iii)Customer will not pass off regulated services provided by Goodlord, a Goodlord affiliate or any third party as being associated with the Customer or suggest Customer has any role in the provision of such services itself.
3.1 Ownership and Reservation of Rights to Goodlord Intellectual Property. Goodlord and its licensors own all right, title and interest in and to the Service and Documentation (and any Intellectual Property Rights therein), and other Goodlord Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, Goodlord reserves all rights, title and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No Intellectual Property Rights are granted to Customer hereunder other than as expressly set forth herein.
3.2 Grant of Rights. Goodlord hereby grants Customer a non-exclusive, non-transferable right and license to use the Service and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the Term, subject to this Agreement and within the scope of rights specified by the relevant Order Form.
3.3 Restrictions. Customer shall not: (i) modify, copy, download or create any derivative works based on the Service or Documentation; (ii) license, sublicense (other than to its Affiliates and Authorised Parties for the purposes of this Agreement), sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorised Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to any software utilized by Goodlord in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
3.5 Customer Input. Goodlord shall own any Customer Input, provided that Goodlord shall have no obligation to make any improvements based on such Customer Input. Customer shall have no obligation to provide Customer Input.
3.6 Aggregated Data Use. Subject to Clause 3.4 above and with the exception of data created by Customer or Authorised Parties and/or Affiliates in using the Service, Goodlord owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Goodlord from utilizing the Aggregated Data for the purposes of operating Goodlord’s business, provided that Goodlord’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event shall the Aggregated Data include any Personal Data.
4.1 Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party's prior written permission, and only then subject to the disclosee agreeing to be bound by binding obligations of confidentiality which shall be no less restrictive than those in this Clause 4.
4.2 Protection. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
4.3 Compelled Disclosure. A disclosure by one Party of Confidential Information of the other Party to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
4.4 Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections hereunder, the other Party shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
4.5 Exclusions. Confidential Information shall not include any information that: (i) is, or becomes, generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party. Customer Data shall not be subject to the exclusions set forth in this Section.
5.1 References in this section to “data controller”, “data processor”, "data subject", and "processing" (and "process "and "processes" will be construed accordingly), will have the meanings ascribed to them under applicable data protection legislation, including any equivalent definitions under laws applicable outside of the European Union. "Customer Data" means any data (including Personal Data) that Goodlord processes when providing the Services pursuant to this Agreement.
5.2 References in this section to "applicable data protection legislation" will mean the EU Data Protection Directive 95/46/EC, or other EU legislation relating to data protection that may be promulgated from time to time, and its implementing legislation in EU Member States (if any), any binding guidance, opinions or decisions of regulatory bodies, courts or other bodies, as applicable, or any other data protection legislation that applies to the parties from time to time, including where either or both parties are located outside of the European Union.
5.4 Where Goodlord is acting as a data processor on behalf of the Customer:
(a)it will: (i) process the Personal Data only for the purpose of providing the Services and in accordance with Customer’s lawful instructions; and (ii) not divulge the whole or any part of the Personal Data to any person, except to a subcontractor under the terms set out in 5.4(b) below , or to the extent necessary for the proper performance of this Agreement or otherwise in accordance with Customer’s lawful instructions; and
(b)the Customer authorizes Goodlord to subcontract the processing of Personal Data under this Agreement to a third party provided that: (i) Goodlord provides the Customer with reasonable prior notice of any such subcontracting; (ii) Goodlord puts in place a written agreement with the subcontractor that sets out data protection terms that are substantially the same as those set out in this Clause 5.4; and (iii) Goodlord will remain liable to the Customer for the acts, errors and omissions of any subcontractor it appoints to process the Personal Data. For the purposes of this agreement, a subcontractor will be an Authorised Party.
5.5 Goodlord will have in place and maintain throughout the term of this Agreement appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing; and
5.6 Goodlord will not transfer any Personal Data outside of the European Economic Area unless and until it has taken all such measures and done all such things as the Customer considers necessary to ensure an adequate level of protection for the Personal Data.
6.Warranties & Disclaimers.
6.1 Warranties. Each Party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or Personal Data. Goodlord warrants that during the pendency of any Order Form: (i) the Service shall perform materially in accordance with this Agreement and the Documentation; and (ii) the functionality of the Service will not be materially decreased when viewed in the aggregate.
6.2 Warranty Remedies. As Customer's exclusive remedy and Goodlord's sole liability for breach of the warranty set forth in Section 6.1 (i) and (ii), (a) Goodlord shall correct the non-conforming Service at no additional charge to Customer, or (b) in the event Goodlord is unable to correct such deficiencies after good-faith efforts, Goodlord shall refund Customer amounts paid that are attributable to the defective part of the Service from the date Goodlord received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Goodlord, but in any case no later than ten (10) days of the date the deficiency is first identified by Customer.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOODLORD MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. GOODLORD DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.
6.4 Beta Services. From time to time, Goodlord may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not included in the definition of the "Service" under this Agreement, however, all restrictions, Goodlord reservation of rights and Customer obligations concerning the Service, and use of any related applications and content not developed or provided by Goodlord, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will automatically and without formality expire upon the earlier of one (1) year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Goodlord may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Goodlord makes no warranty with respect to any Beta Services and will have no liability for any harm or damage arising out of or in connection with a Beta Service.
6.5 Deposit Disputes. Goodlord collects rent and security deposits from tenants on behalf of agencies by card and bank transfer. Goodlord is not liable for any disputes or claims made against these payments. Your agency/landlord is responsible for your security deposit and for passing information relating to the deposit to all concerned parties.
7. Mutual Indemnification.
7.1 Indemnification by Goodlord. Goodlord shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes any Intellectual Property Right; provided, however, that Customer: (a) promptly gives written notice of the Claim to Goodlord; (b) gives Goodlord sole control of the defence and settlement of the Claim (provided that Goodlord may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Goodlord, at Goodlord's cost, all reasonable assistance. Goodlord shall not be required to indemnify Customer to the extent the Claim is caused by: (w) modification of the Service by Customer, its Employees, or Authorised Parties in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (x) use of the Service in a manner inconsistent with the Documentation; (y) use of the Service in combination with any other product or service not developed or provided by Goodlord; or (z) use of the Service in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Service or Goodlord reasonably believes it will be enjoined or a claim of infringement will be made, Goodlord shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is deemed available to Goodlord in its sole discretion, then use of the Service may be terminated at the option of Goodlord and Goodlord’s sole liability shall be to refund any prepaid fees for the Service that were to be provided after the effective date of termination.
7.2 Indemnification by Customer. Customer shall defend, indemnify and hold Goodlord, its subsidiaries and affiliates, and its and their respective owners, employees, officers, directors and agents harmless from any loss, damage or costs (including reasonable legal fees) in connection with Claims made or brought against Goodlord by a third party arising from an allegation that the Customer Data infringes the rights of, or has caused harm to a third party, or violates any Law, the breach of this Agreement or the warranties set forth herein, or the improper act, omission or negligence of Customer provided, however, that Goodlord: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Goodlord of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance.
8. Limitation of Liability.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S (OR GOODLORD’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SERVICES FEES ACTUALLY PAID BY CUSTOMER TO GOODLORD IN CONSIDERATION FOR GOODLORD’S SERVICE DELIVERY DURING THE TWELVE-MONTH (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FACTS AND CIRCUMSTANCES FROM WHICH THE CLAIM AROSE.
8.2 Exclusion of Damages. EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS; IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9. Term & Termination.
9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the Parties (the "Term"). Access to the Services commence on the date, and are for a period, as set forth in the applicable Order Form.
9.2 Auto Renewal. This Agreement shall be automatically renewed for successive one (1) year terms thereafter (each a Renewal Term) until and unless either Party provides the other Party with thirty (30) days prior written notice to the end of the Initial Term or the Renewal Term. Termination letters should be sent to email@example.com.
Change in pricing may occur with due notice given sixty (60) days before renewal date.
9.3 Termination. Either Party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately upon written notice in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon any termination by Customer pursuant to this section, Goodlord shall refund Customer any prepaid fees for the affected part of the Service that was to be provided after the effective date of termination.
9.4 Effect of Termination. Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilising the Service (except as permitted under the section entitled “Retrieval of Customer Data”) and Goodlord's Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Goodlord prior to the effective date of termination and termination for any reason other than for uncured material breach by Goodlord shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms.
9.5 Retrieval of Customer Data. Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Goodlord will make all Customer Data available to Customer through the Service as a .csv file (or in such other format as is agreed between the Parties) on a limited basis, solely for the purpose of Customer retrieving Customer Data, for a period of up to thirty (30) days after such request is received by Goodlord. After such period for retrieval of Customer Data, within sixty (60) days after Customer’s written request, Goodlord will delete the Customer Data by deletion of Customer’s Tenant; provided, however, that Goodlord will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, and provided further that in all cases Goodlord will continue to protect the Customer Data in accordance with this Agreement. The foregoing deletion obligation will be subject to any retention obligations imposed on Goodlord by Law. If Customer requires Goodlord’s assistance, Customer may acquire Goodlord professional services at Goodlord’s then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Customer will determine the scope of the professional services engaged to extract data from the Goodlord system and as such may increase or decrease Goodlord’s professional services involvement in order to control costs.
9.6 Surviving Provisions. The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) subsection (i) of Section 1.1 “Provision of the Service”; (ii) Section 3.2 “Grant of Rights”; and (iii) any Order Form(s). All other provisions of this Agreement shall survive any termination or expiration of this Agreement.
10. General Provisions.
10.1 Relationship of the Parties and Third Party Rights.
(a) The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except with regard to Affiliates as set out in Clause 10.1(b) below, there are no third-party beneficiaries to this Agreement entitled to bring an action under it.
(b) Affiliates may enforce the terms of this Agreement directly against Goodlord, subject to the following conditions and subject always to the limitation and exclusions in Clause 8 above:
(i) the Customer will bring any legal action, suit, claim or proceeding that the Affiliate would otherwise have if it were a party to this Agreement (each an “Affiliate Claim”) directly against Goodlord on behalf of such Affiliate, unless the applicable Law to which the relevant Affiliate is subject requires that the Affiliate itself bring or be party to such Affiliate Claim;
(ii) for the purpose of any Affiliate Claim brought directly against Goodlord by Customer on behalf of such Affiliate in accordance with this Clause 10.1(b), any losses suffered by the relevant Affiliate may be deemed to be losses suffered by Customer; and
(iii) for the avoidance of doubt, the limitation of liability set forth in Section 8.1 is a single aggregate limitation of liability for Customer and Affiliates.
10.2 Prevention of Corruption
(a) Each Party warrants that in entering into this Agreement it has not committed any Prohibited Act (defined below).
(b) If a Party or any subcontractor of that Party (or anyone employed by or acting on behalf of any of them) or any of its or their agents commits any Prohibited Act, that act shall be considered a material breach subject to the provisions of Clause 9.2(i) above (Termination). Depending on the circumstances of the breach, such remedy may include, but shall not be limited to: (a) the termination of employment (or instruction, if a subcontractor) of the person(s) committing the Prohibited Act; (b) if necessary, procuring the continued performance of the Agreement (in Goodlord’s case, the Service) by another person(s); and/or (c) an undertaking by a sufficiently senior executive (director level or above) that the Prohibited Act has been fully investigated and remedied, to the reasonable satisfaction of the Innocent Party.
(c) For the purposes of this Clause 10.2, the term “Prohibited Act” means (i) the offering, promising or giving of a financial or other advantage to another person (whether directly or through a third party) with the intention to induce that person to perform improperly a relevant function or activity or to reward that person for the improper performance of such a function or activity or knowing or believing that the acceptance of the advantage would constitute the improper performance of such a function or activity; and / or (ii) the requesting, agreeing to receive or acceptance of a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by that person or another person) or improperly performing a relevant function or activity in anticipation of receiving or accepting a financial or other advantage; and/or (iii) the offering, promising or giving of a financial or other advantage to another person (whether directly or through a third party) who is a foreign public official (as defined in the United Kingdom Bribery Act 2010) intending to influence the performance of that foreign public official’s functions (whether in the exercise or in omitting to exercise those functions) or otherwise to use the foreign public official’s position in order to obtain or retain business or an advantage in the conduct of business; and/or (iv) without limiting the foregoing, any act that is in breach of applicable Law, including those relating to anti-bribery and anti-corruption (including the UK Bribery Act 2010 and US Foreign & Corrupt Practices Act as they may be amended).
(d) In the definition of Prohibited Act above: (i) a "person” includes an individual, partnership, body corporate or other recognized commercial organization; and (ii) a “relevant function or activity” shall mean a function or activity if it is of a public nature, or is connected with a business, or is performed in the course of a person’s employment or is performed on behalf of a body of persons (whether corporate or unincorporated) and the person performing the function or activity is expected to perform it in good faith, or impartially, or is in a position of trust by virtue of performing it (failure of any one of the above conditions being improper performance of that function or activity) regardless of where in the world such function or activity is performed or should be performed.
10.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to Goodlord shall be addressed to firstname.lastname@example.org. Notices to Customer shall be addressed to the party set forth under the applicable Order Form. Each Party may modify its recipient of notices by providing notice pursuant to this Agreement.
10.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
10.5 Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder ) for causes beyond that Party’s reasonable control and not caused by that Party’s fault, or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems (other than those involving Goodlord or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility (a “Force Majeure Event”), but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.6 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Goodlord in its sole discretion. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.7 Governing Law and Jurisdiction. 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 exclusively by, and construed in accordance with, the laws of England and Wales. The English courts located in London, England have exclusive jurisdiction to determine any dispute arising in connection with this Agreement including disputes relating to any non-contractual obligations.
10.8 Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing access and using the Service. Without limiting the generality of the foregoing, Customer shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
10.9 Miscellaneous. This Agreement, together with all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
10.10 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.11 Goodlord may use Customer's name and logo in lists of customers, on marketing materials and on its website, but only in such form as may be expressly consented to by Customer in writing from time to time (such consent not to be unreasonably withheld or delayed). Goodlord shall not publicize its relationship with Customer without Customer's express written consent (such consent not to be unreasonably withheld or delayed).
10.12 This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Authorised Parties" means Customer’s Employees, Customer's Affiliates' Employees, Customer's consultants, service providers, contractors, agents or third party providers Authorised to access the Service and Customer Data by Customer (or its Affiliates) (i) in writing, (ii) through the Service’s security designation, or (iii) by system integration or other data exchange process.
“Beta Services” means Goodlord services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
"Confidential Information" means (a) any software utilized by Goodlord in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as "confidential" or "proprietary" or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).
"Customer Data" means the electronic data or information submitted by Customer or Authorised Parties to the Service, which may include Personal Data.
“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Employees and Authorised Parties relating to the operation or functionality of the Service.
“Documentation" means Goodlord’s electronic user guide for the Service, which may be updated by Goodlord from time to time.
"Employee" or “Worker” means employees, consultants, contingent workers, independent contractors, and retirees of Customer and its Affiliates whose active business record(s) are or may be managed by the Service and for which access to the Services has been purchased pursuant to an Order Form. The number of permitted Employees will be as set forth in the applicable Order Form. Information related to former employees, consultants, contingent workers, independent contractors and retirees in the form of static, historical records may be maintained in the system but shall be excluded from the calculation of Employees unless self-service access to the record through the Service is provided to the individual.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honoured or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law(s)” means any local, state, national and/or foreign law or laws, treaties, and/or regulations applicable to a respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
"Order Form(s)" means the ordering documents (which may be website or mobile application pages that provide such functionality) applicable to the initial purchase of the Service as well as any subsequent purchases of ancillary services agreed to between the parties in writing from time to time, that are executed hereunder or agreed to on such website or application and that specify, among other things, the number and type of Servicess ordered, the Services Term and the applicable Fees.
"Personal Data" means any information that relates to an identified or identifiable individual.
"Service" means Goodlord’s software-as-a-service hosted applications as described in the Documentation and subscribed to under an Order Form.
"Tenant" means a unique instance of the Service, with a separate set of customer data held by Goodlord in a logically separated database (i.e., a database segregated through password-controlled access).