CONNEX USER AGREEMENT – TERMS AND CONDITIONS
Interpretation
The definitions and rules of interpretation in this clause apply in this Agreement.
Add-On Feature: means a feature of the Service which is available as an add-on feature to a specified Tier or to any Tier of service for an additional fee as specified in the Pricing Guide.
Agreement: means both the Order Form and these Terms and Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in 11.1
Connex: means Studiosync Limited (t/a Connex) (No. 14753067).
Connex Service: means the user-facing functionality of the Services, through which Creators are able to provide Content to Customer (and other similar entities) and which Customer may use to manage and deal with that Content.
Content: means audio, text, information, data, images, or video material in any medium or form provided by a Creator to the Customer via the Connex Service.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Creator: individuals or entities who use, have created, or are the licensors of, Content.
Customer: means the individual or entity receiving the Services as set out in the Order Form.
Customer Data: the data inputted by the Customer, Authorised Users, or Connex on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
Deal Sheet: the form signed by both the Customer and Connex pursuant to purchasing the Services.
Documentation: the document made available to the Customer by Connex online via https://www.connex.music or such other web address notified by Connex to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
Effective Date: the date on which the Order Form is accepted by Connex pursuant to clause 2.5.
Escalation Procedure: means the escalation procedure set out in clause 15.
First Subscription Month: means the period of one calendar month commencing on the Effective Date.
Generative AI Tools: means generative artificial intelligence tools or any other technology which has a generative function as a result of “training”.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Intellectual Property Rights: patents, trade marks, service marks, logos, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world;
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order Form: means either the online form completed by the Customer, or the Deal Sheet, as applicable.
Pricing Guide: the guide which sets out the applicable Subscription Fee for a Tier of Service, available at https://www.connex.music/pricing.
Renewal Period: the period described in 14.1.
Seat: means a unique user account allocated to an individual User, which enables that User to commence a Session and to access the Services. Seats may be offered with various functionality, such as by designating certain Seats as having ‘Administrator’ privileges and others as having ‘User’ privileges, and certain Tiers may grant access to varying quantities of particular types of Seats.
Services: the subscription services provided by Connex to the Customer under this Agreement as determined by reference to the Tier, or Tiers, of service selected and paid for by the Customer from time to time, as more particularly described in the Documentation.
Session: means an individual live session, during which an individual User accesses the Service using the unique access credentials specific to their allocated Seat.
Software: the online software applications provided by Connex as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Connex for a particular Tier, or Tiers, of Service as set out in the Pricing Guide.
Subscription Term: has the meaning given in 14.1 (being the First Subscription Month together with any subsequent Renewal Periods).
Terms and Conditions: these terms and conditions which apply to the Customer’s use of the Services.
Tier: means a package of services selected by the Customer at the outset of a Subscription, which will determine the recurring Subscription Fee to be paid for that Subscription and the quantity and type of Services which the Customer is entitled to receive during it. Amongst other matters a Tier may specify a particular number and/or type of Seats or Sessions to which the Customer is entitled.
UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
User: means an individual user authorised by the Customer and provided by it with individual logon details who accesses the Services with a unique log in name and password.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular includes the plural and in the plural includes the singular.
Unless the context otherwise requires, a reference to one gender includes a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
A reference to a statute or statutory provision includes all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
A reference to writing or written excludes fax but not email.
References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2. Formation of Contract
This Agreement is made up of the following:
The Order Form; and these Terms and Conditions.
This Agreement applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
The Agreement is the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
By accepting the Order Form, either by signing a paper copy or by submitting an approved electronic version via the Connex website, the Customer is making an offer to subscribe to the Services as specified in the relevant Order Form.
Upon receipt of the Order Form from the Customer, Connex will acknowledge that it has received the Order Form. Acknowledgement of an Order Form does not constitute acceptance. Acceptance of the Customer’s order takes place when the Customer receives an email from Connex which confirms that order has been accepted. Provision of the Service will commence at the point at which Connex send a notification to the Customer confirming the same and Connex will use reasonable endeavours to begin providing the Service within 48 hours of confirming that the order will be accepted. The date on which the Service commences will be the “Effective Date”.
2. Services
Connex shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer subject to the terms of this Agreement.
Connex shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week and will give the Customer notice in advance of maintenance where reasonably practicable
3. Seats and Users
The Customer shall be allocated the number and types of Seats applicable to the purchased Tier of service.
Subject to the Customer purchasing the Seats in accordance with 4.3, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Connex hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
In relation to the Users, the Customer undertakes that:
the maximum number of Users that it authorises to access and use the Services shall not exceed the number of Seats it has purchased from time to time;
it will not allow or suffer any Seat to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Services; and
each User shall keep a secure password for their use of the Services and that each User shall keep their password confidential.
The Customer shall not:
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
use the Services and/or Documentation to provide services to third parties; or
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
introduce or permit the introduction of, any Virus or Vulnerability into the Services or Connex's network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Connex.
The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4. Upgrading Tiers
The Customer may, at any time, upgrade its current service Tier, or procure additional Seats and/or Add-On Features.
Where the Customer wishes to purchase additional Seats and/or Add-On Features not included in its current Tier, the Customer will be required to either (a) upgrade its subscription by purchasing a higher Tier of service, or (b) pay an additional fee, as specified in the Pricing Guide, in order to gain access to additional Seats and/or Add-On Features at the current service Tier. Where the Customer elects to pay a fee for additional Seats and/or Add-On Features that fee shall be payable again at each interval at which payment of the Subscription Fee for the Customer’s chosen service Tier becomes due.
When Connex approves the Customer's request to upgrade its current Tier, or purchase additional Seats and/or Add-On Features, the Customer shall pay to Connex the relevant fees for such additional Seats and/or Add-On Features as determined by reference to Pricing Guide. Unless otherwise agreed between the parties, the Tier upgrade or additional Seats and/or Add-On Features requested will be activated from the next Renewal Period and will be added to the Subscription Fee payable on a monthly basis in accordance with clause 9 with effect from the next Renewal Period.
If the Customer requests that the Tier upgrade or additional Seats and/or Add-On Features are to be activated part way through the First Subscription Month or any Renewal Period (as applicable), such additional fees shall be due on the date on which Connex approves the Customer’s request (pro-rated from the date of activation by Connex for the remainder of the First Subscription Month or then current Renewal Period (as applicable)) and thereafter shall be added to the Subscription Fee and paid at the same time as those fees on a monthly basis.
If the Customer requests to downgrade its current Tier, or stop receiving any Seats or Add-On Features, the Customer shall request such a downgrade or cessation in writing to Connex. If Connex approves the Customer’s request to downgrade its current Tier or stop receiving such Seats and/or Add-On Features, the downgrade and/or cessation shall take effect as of the next Renewal Period, and the fees due in respect of the next Renewal Period shall be reduced accordingly.
5. Data protection
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Connex is the Processor.
Without prejudice to the generality of clause 5.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Connex and/or lawful collection of the Personal Data by Connex on behalf of the Customer for the duration and purposes of this Agreement.
Without prejudice to the generality of clause 5.1, Connex shall, in relation to any Personal Data processed in connection with the performance by Connex of its obligations under this Agreement:
process that Personal Data only on the documented written instructions of the Customer unless Connex is required by Domestic Law to otherwise process that Personal Data. Where Connex is relying on Domestic Law as the basis for processing Personal Data, Connex shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Connex from so notifying the Customer;
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
not transfer any Personal Data outside of the UK unless the following conditions are fulfilled:
Connex has provided appropriate safeguards in relation to the transfer;
the data subject has enforceable rights and effective legal remedies;
Connex complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
Connex complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a Personal Data Breach;
at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Domestic Law to store the Personal Data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
The Customer consents to Connex appointing third-party processors of Personal Data under this Agreement. Connex confirms that it has entered or (as the case may be) will enter into a written agreement with any such third-party processor incorporating terms which are substantially similar to those set out in this clause 9 and in either case which Connex confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Connex. Connex shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
Either party may, at any time on not less than 30 (thirty) days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
6. Connex's obligations
Connex shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
Connex's obligations at 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Connex's instructions, or modification or alteration of the Services by any party other than Connex or Connex's duly authorised contractors or agents. If the Services do not conform with the terms of clause 6.1, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in 6.1.
Connex:
does not warrant that:
the Customer's use of the Services will be uninterrupted or error-free;
that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;
the Software or the Services will be free from Vulnerabilities or Viruses; or
the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent Connex from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Connex warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
Connex shall on a regular basis, and in any event no less than every 3 months, back up any Customer Data provided by the Customer. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Connex shall be for Connex to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Connex. Connex shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Connex to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.)
7. Customer's obligations
The Customer shall:
provide Connex with:
all necessary co-operation in relation to this Agreement; and
all necessary access to such information as may be required by Connex;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Connex may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this Agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Connex, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by Connex from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Connex's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
In the event that Connex in its provision of the Services provides any functionality to the Customer that includes any Generative AI tools and/or resulting products therefrom, the Customer will:
comply with any terms and conditions which may appear in the Services which set out specific restrictions that relate to the use of the Generative AI Tools;
have obtained all necessary rights to input any Customer Data and/or any Personal Data into the relevant Generative AI Tool; and
be solely responsible and liable for the outputs generated by the Generative AI Tool as a result of the Customer’s use of such outputs freely in all media without restriction and/or claim by any third party person and/or entity.
8. Creator Content Licence
Customer acknowledges that the Services allows Creators to transfer that Content to the Customer. Where such a transfer is made to the Customer, the Creator grants a non-exclusive, worldwide, perpetual and royalty-free licence to the Customer to modify, adapt and copy the Intellectual Property Rights in that Content on terms that prohibit the Customer from granting any further sub-licence for the purpose of:
using that Content for the Customer’s internal business operations; and
where the relevant Content is provided by the Creator for such purpose, adding that Content to the Customer’s database of works under management,
(the “Content Licence Restrictions”).
The Customer shall not infringe any moral rights (as defined in Chapter IV of the Copyright, Designs and Patents Act 1988) that subsist in respect of the Content.
Any breach of the Content Licence Restrictions shall be a material breach of this Agreement and, without prejudice to any other remedies available to Connex or a Creator, Connex shall be entitled to terminate this Agreement with immediate effect in the event that the Customer is in breach of the Content Licence Restrictions.
9. Charges and payment
The Subscription Fee payable by the Customer will be determined by reference to the Tier of service to which the Customer has subscribed, plus the cost of any additional Seats and/or add-ons which may be purchased by the Customer. The Subscription Fee and all other such additional costs shall be payable monthly in advance.
The first instalment of the Subscription Fee and any other fees shall become due on the first day in the First Subscription Month, and shall be pro rated based on the amount of days remaining in the First Subscription Month. All subsequent instalments of the Subscription Fee and any other fees shall become due on the first day of each Renewal Period thereafter.
The Subscription Fees paid in accordance with this Agreement are the sole remuneration for the proper performance of the Services and any all other obligations and the grant of any and all rights to the Customer hereunder.
Where the Order Form does not specify an alternative timeframe, payment will be collected monthly on the first day of each month.
Connex shall maintain complete and accurate records of, and supporting documentation for, all amounts that may be chargeable to the Customer pursuant to this Agreement. Such records shall be retained for inspection by the Customer for at least three (3) years from the date to which the records relate.
All sums payable by either Party under this Agreement shall be paid in pounds sterling and are non-refundable.
If Connex does not receive payment on or before the day such payment is due then without prejudice to any other rights and remedies of Connex:
may without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Connex shall be under no obligation to provide any or all of the Services until payment has been made by the Customer; and
interest shall accrue on a daily basis on late payments at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
Connex shall be entitled to increase the Subscription Fees and/or the fees payable in respect of the additional Seats and/or Add-On Features purchased pursuant to 4.3 at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
10. Proprietary rights
The Customer acknowledges and agrees that Connex and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
Connex confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11. Confidentiality
Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this Agreement in connection with the Services, including but not limited to:
any information that would be regarded as confidential by a reasonable business person relating to:
the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
any information developed by the parties in the course of carrying out this Agreement.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
The provisions of this clause shall not apply to any Confidential Information that:
is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
the parties agree in writing is not confidential or may be disclosed;
is developed by or for the receiving party independently of the information disclosed by the disclosing party.
Each party shall keep the other party's Confidential Information secret and confidential and shall not:
use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
On termination or expiry of this Agreement, each party shall:
destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Term and Termination).
Where an announcement is required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction, the party required to make the announcement shall promptly notify the other parties. The party concerned shall make all reasonable attempts to agree the contents of the announcement before making it.
Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
The above provisions of this 11 shall continue to apply after termination or expiry of this Agreement.
12. Indemnity
The Customer shall defend, indemnify and hold harmless Connex against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
the Customer is given prompt notice of any such claim;
Connex provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.
Connex shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this Agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
Connex is given prompt notice of any such claim;
the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Connex in the defence and settlement of such claim, at Connex's expense; and
Connex is given sole authority to defend or settle the claim.
For the avoidance of doubt, Connex’s indemnity in this clause 12.2 does not include any amounts awarded against the Customer in judgment or settlement of any claims brought against the Customer, its officers, directors and/or employees in respect of the outputs of any Generative AI Tool.
In the defence or settlement of any claim, Connex may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall Connex, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a modification of the Services or Documentation by anyone other than Connex; or
the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Connex; or
the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Connex or any appropriate authority; or
the Customer's breach of this Agreement.
The foregoing and 13.3(b) state the Customer's sole and exclusive rights and remedies, and Connex's (including Connex's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation of liability
Except as expressly and specifically provided in this Agreement:
the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Connex shall have no liability for any damage caused by errors or omissions in any Customer Data, outputs generated by the Generative AI Tool, information, instructions or scripts provided to Connex by the Customer in connection with the Services, or any actions taken by Connex at the Customer's direction and, for the avoidance of doubt, this limitation applies to all claim arising in relation to this Agreement under any theory of liability and specifically including indemnity claims;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services and the Documentation are provided to the Customer on an "as is" basis.
Nothing in this Agreement excludes the liability of Connex:
for death or personal injury caused by Connex's negligence; or
for fraud or fraudulent misrepresentation.
Subject to 13.1 and 13.2:
Connex shall have no liability for any:
loss of profits,
loss of business,
wasted expenditure,
depletion of goodwill and/or similar losses,
loss or corruption of data or information, or
any special, indirect or consequential loss, costs, damages, charges or expenses; and
Connex's total aggregate liability to the Customer (including in respect of the indemnity at 12.2), in respect of all breaches of duty occurring within any contract year shall not exceed £10,000 and, for the avoidance of doubt, this limitation applies to all claim arising in relation to this Agreement under any theory of liability and specifically including indemnity claims.
References to liability in this clause 13 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Connex’s Intellectual Property Rights.
14. Term and termination
This Agreement shall, unless otherwise terminated as provided in this 14, commence on the Effective Date and shall continue for the First Subscription Month and, thereafter, this Agreement shall be automatically renewed for successive periods of 1 month (each a Renewal Period), unless:
either party notifies the other party of termination, in writing at least 30 days before the end of the First Subscription Month or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable First Subscription Month or Renewal Period; or
replacement terms as have been documented and agreed in the Order Form;
otherwise terminated in accordance with the provisions of this Agreement;
and the First Subscription Month together with any subsequent Renewal Periods shall constitute the Subscription Term.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified;
the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
Connex may destroy or otherwise dispose of any of the Customer Data in its possession unless Connex receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Connex shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Connex in returning or disposing of Customer Data; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Escalation Procedure
If a dispute arises out of or in connection with this Agreement or its performance, validity or enforceability (a “Matter in Dispute”) then the parties shall follow the procedure set out in this clause. The Escalation Procedure will be conducted as follows.
Escalation Level 1
Customer: Operations Owner or Product Owner
Connex: Operations Owner or Commercial Owner
Escalation Level 2
Customer: Product Owner or CIO
Connex: Commercial Owner, or CFO
Escalation Level 3
Customer: CEO or CFO
Connex: CEO
The primary operational contact of the party that identifies a Matter in Dispute will notify that party’s contact person at Escalation Level 1, including the information set out in clause 15.6 (a “Dispute Notification”).
Escalation Level 1 will attempt to resolve the Matter in Dispute within ten (10) Business Days after the Dispute Notification. If a resolution has not been agreed upon within ten (10) Business Days from the date of Dispute Notification, or at a date earlier in time if the parties agree thereon, either Party may refer the Matter in Dispute to Level 2 by electronic means ("Reference Date 1").
Escalation Level 2 will attempt to resolve the Matter in Dispute within ten (10) Business Days from Reference Date 1. If a resolution has not been agreed upon within ten (10) Business Days from Reference Date 1, or at a date earlier in time if the parties agree thereon, either may refer the Matter in Dispute to Level 3 by electronic means, while simultaneously transferring the log-file referred to above ("Reference Date 2");
Escalation Level 3 will resolve the Matter in Dispute within ten (10) Business Days from Reference Date 2. If a resolution has not been agreed upon within ten (10) Business Days from Reference Date 2, or at a date earlier in time if the parties agree thereon, the Escalation Procedure will be deemed to have been exhausted.
A Dispute Notification should capture the following:
Name of person identifying the issue
Date and time of identification
Issue description
Issue urgency
Name of the person who has been assigned the issue
Description of (proposed) action taken to resolve issue
For urgent Matters in Dispute either party will be entitled to accelerate the procedure by:
skipping one Escalation Level; and/or
escalating the Matter in Dispute to a higher Escalation Level prior to the lapse of the periods specified above.
Both parties retain the right to obtain preliminary relief, by means of summary proceedings at all time and without exhaustion of the Escalation Procedure.
On completion of the Escalation Procedure, the decision shall be documented by Connex and returned to the Customer for future reference and record.
If the Matter in Dispute is not resolved by the exhaustion of the Escalation Procedure, the Matter in Dispute shall be referred to and finally resolved by the courts of England and Wales in accordance with clause 16.14.
16. Miscellaneous
Force majeure: Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 6 months, the party not affected may terminate this Agreement by giving 10 days’ written notice to the affected party.
Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under clause 16.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Entire agreement:
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Nothing in this clause shall limit or exclude any liability for fraud.
Assignment: Neither Party shall, without the prior written consent of the other Party, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement, provided either Party may assign this Agreement and its rights and obligations hereunder without the other Party’s consent in connection with a transfer or sale of all or substantially all of the business of such Party, whether by merger, sale of stock, sale of assets, or otherwise.
No partnership or agency: Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights: The Customer hereby acknowledges that this Agreement grants rights to the Customer in respect of the Intellectual Property Rights of Content owned or licenced by Creators who transfer their Content to the Customer. Such Creators shall be entitled to enforce any relevant clauses of this Agreement which relate to the Content as a third party beneficiary to this Agreement in order to enforce their rights in and to their Content. Save as expressly stated in this clause 16.9, this Agreement does not give rise to any other rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Counterparts: This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. Transmission of the executed signature page of a counterpart of this Agreement by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
Publicity: Connex shall be entitled to name the Customer as a customer and user of the Services, and to publicise the fact that the Customer is a customer and user of the Services in a list with all other customers and users of the Services on Connex’s website, its social media communications, and in Connex’s marketing and promotional materials generally. Connex shall not, in doing the foregoing, suggest any form of formal endorsement or recommendation by the Customer. The Customer and Connex shall work together to produce a promotional statement which sets out the arrangements that are enabled by this Agreement and which sets out the benefits to the Customer and/or its end-users. Connex will prepare the draft of that statement and the Customer shall be entitled to have sign-off of the final version.
Notices: Any notice given to a party under or in connection with this Agreement shall be in writing and shall be sent by email to the email addresses specified in the Commercial Details (or an address substituted in writing by the party to be served). Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Governing law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).