ASK BOSCO® SaaS Agreement

Interpretation

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

• Acceptable Use Policy: the acceptable use policy made available at https://modo25.com/acceptable-usage-policy or such other URL notified to Customer by Modo25 from time to time.
• Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services.
• Confidential Information: information or data, in whatever form or storage medium, that is proprietary or confidential and is either clearly labelled or identified as such.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
• Customer Data: the data inputted by the Customer, Authorised Users, or Modo25 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, including:
  1. the General Data Protection Regulation (EU) 2016/679 (“GDPR”);
  2. GDPR as implemented into UK law by the European Union (Withdrawal) Act 2018 (the “UK GDPR”);
  3. the Privacy and Electronic Communications (EC Directive) Regulations 2003;
  4. the Data Protection Act 2018; and
  5. any and all applicable national data protection laws including those made under or pursuant to (i), (ii), (iii) or (iv) in each case as may be amended or superseded from time to time together with any regulations made thereunder or any successor legislation, and all other legislation and regulatory requirements in force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.
• Documentation: the document made available at https://askbosco.io/ or such other URL notified to Customer by Modo25 from time to time which sets out a description of the Services.
• Fees: the fees payable by the Customer to Modo25 for provision of the Services, as set out in Schedule 1 (Services and Fees).
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer products, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other Intellectual Property Rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
• Normal Business Hours: 8.00 am to 5.00 pm local UK time, each day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Platform: the digital marketing SaaS platform “ASK BOSCO®” made available by Modo25.
• Privacy Policy: Modo25's privacy policy made available via https://askbosco.io/privacy-policy/ or any other website notified to the Customer by Modo25 from time to time.
• Results: any outputs relating to the Customer which are generated or created as a result of the Customer's use of the Services under this Agreement, including but not limited to the Customer's ASK BOSCO® Index and any related reports.
• Services: the subscription services provided by Modo25 to the Customer in connection with the Platform (including provision any applicable Documentation), and as more specifically detailed at Schedule 1 (Services and Fees).
• Support Services Policy: Modo25's policy for providing support in relation to the Services as made available at https://askbosco.io/ or such other URL notified to the Customer by Modo25 from time to time.
• Term: the duration of this Agreement as set out in clause 12.1.
• Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the provision of the Services, the operation of any computer software, hardware, or network, any programme or data, or any other service or device, including worms, trojan horses, viruses and other similar things or devices.

The clause headings in this Agreement are for the convenience of the parties only and shall not limit or govern or otherwise affect its interpretation in any way.

A reference to any statutory or legislative provision includes a reference to that provision as modified, replaced, amended and/or re-enacted from time to time.

Licence grant

Subject to and conditional on the Customer's compliance with the terms of this Agreement, including the restrictions in this clause 2, Modo25 hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right for Authorised Users to use the Services during the Term solely for the Customer's normal business operations.

The Customer shall, at all times, ensure that Authorised Users comply with this Agreement and the Acceptable Use Policy.

Modo25 reserves the right, without liability or prejudice to its other rights, to suspend or disable with immediate effect the Customer's access to or use of the Services in the event of any breach of clauses 2.2 or 12.3(a), or in the event Modo25 determines that the Customer's access to or use of the Services poses a security risk or may subject Modo25 or any third party to any liability.

Services

Modo25 shall, during the Term, provide the Services to the Customer on and subject to the terms of this Agreement.

Modo25 shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
2. unscheduled maintenance performed outside Normal Business Hours, provided that Modo25 has used reasonable endeavours to give the Customer at least [[6] Normal Business Hours'] notice in advance.

Modo25 reserves the right, without liability or prejudice to its other rights, to suspend or disable with immediate effect the Customer's access to or use of the Services in the event of any breach of clauses 2.2 or 12.3(a), or in the event Modo25 determines that the Customer's access to or use of the Services poses a security risk or may subject Modo25 or any third party to any liability.

Data protection

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 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 data controller and Modo25 is the data processor in respect of any billing Customer Data processed for the purpose of verifying payment of the Fees under this Agreement. Except for the foregoing, Modo25's use of Customer Data for Modo25's business, operational or administrative purposes, shall be processed by Modo25 as data controller pursuant to the applicable Data Protection Legislation and the Privacy Policy, including personal data of Authorised Users processed in order to facilitate access to the Services and provide customer and technical support to the Customer.

Modo25 shall, when acting as a data processor in respect of the Customer Data as set out in clause 4.2 above:

1. process the Customer Data only in accordance with this Agreement and/or the Customer's written instructions from time to time, and shall not process the Customer Data for any purposes other than those expressly authorized in writing by the Customer or this Agreement, unless required by applicable law. Where Modo25 is relying on applicable law as the basis for processing Customer Data, Modo25 shall promptly notify the Customer of this before performing the processing required by the applicable law unless the applicable law prohibits Modo25 from so notifying the Customer;
2. take appropriate technical and organisational measures against the unauthorised or unlawful processing or destruction of or damage to the Customer Data to ensure a level of security appropriate to:
   1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
   2. the nature of the data to be protected;
3. ensure that all of its personnel who have access to and/or process Customer Data are obliged to keep the Customer Data confidential;
4. not transfer any Customer Data outside of the UK unless the following conditions are fulfilled:
   1. the Customer or Modo25 has provided appropriate safeguards in relation to the transfer;
   2. the relevant data subjects have enforceable rights and effective legal remedies; and
   3. Modo25 complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Customer Data that is transferred;
5. provide the Customer, at the Customer's cost, with reasonable assistance in responding to any request from any individual whose personal data forms part of the Customer Data and in ensuring the Customer's compliance with its obligations under Data Protection Legislation with respect to security, personal data breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6. notify the Customer without undue delay on becoming aware of any security breach in respect of Customer Data;
7. at the written direction of the Customer, delete or return Customer Data and copies thereof to the Customer on termination of this Agreement, except to the extent required by applicable law;
8. maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and shall make such records available to the Customer to the extent necessary to demonstrate Modo25 and/or the Customer's compliance with Data Protection Legislation. Prior to making any such records and information available to the Customer, Modo25 may redact any commercially sensitive or confidential information contained therein to the extent it considers necessary;
9. notify the Client immediately if, in Modo25's opinion, any of the Customer's instructions infringes Data Protection Legislation.

The Client agrees that Modo25 may:

1. transfer Customer Data out of the UK, provided that the conditions set out in clause 4.3(d) are satisfied; and
2. appoint subcontractors as third-party processors of Customer Data under this Agreement. Modo25 confirms that it has entered or (as the case may be) will enter with such third-party processors into written agreements in conformance with Modo25 obligations under this clause 4. As between the Customer and Modo25, Modo25 shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 4.4(b).

Modo25's obligations

Modo25 warrants that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care but does not warrant that the Customer's use of the Services will be uninterrupted or error-free.

The warranty at clause 5.1 above shall not apply to the extent of any non-conformance caused by the Customer's systems, Customer's (including any Authorized User's) breach of this Agreement, use of the Services contrary to Modo25's instructions, or modification or alteration of the Services by any party other than Modo25. If the Services do not conform with the warranty at clause 5.1, Modo25 will use its reasonable commercial endeavours to correct or replace any such non-conformance promptly. Such correction or replacement constitutes the Customer's sole and exclusive remedy for any breach of clause 5.1.

Other than as set out in this clause 5 or clause 8.6 below, all warranties, conditions, terms undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for a particular purpose or ability to achieve a particular result in relation to the Services or accuracy or completeness of Results are excluded to the fullest extend allowed by applicable law. The Customer assumes all responsibility for its use of the Results and any other materials obtained from the Services, and for conclusions drawn from such use. For the avoidance of doubt, the Customer acknowledges that its use of the Services does not guarantee any specific results.

Customer's obligations

The Customer shall provide Modo25 with all necessary co-operation in relation to this Agreement; and all necessary access to the Customer's information, electronic systems and materials as may be required by Modo25, in order to provide the Services. The Customer shall carry out the foregoing obligations in a timely manner.

The Customer shall ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's breach of this Agreement.

The Customer shall comply with all applicable laws and regulations in relation to its receipt of and use of the Services, and any guidelines or policies of Modo25 issued to the Customer from time to time during the Term.

The Customer hereby grants Modo25 a non-exclusive, worldwide licence to use the Customer's name, mark and logo in Modo25's marketing materials, and to identify the Customer as a Modo25 customer, provided that such use shall be in accordance with any published usage guidelines made available to Modo25 by the Customer.

Charges and payment

The Customer shall pay all Fees to Modo25 for the Services monthly in advance. All Fees are exclusive of value added tax, which shall be added to the invoice(s) at the appropriate rate. All Fees paid are non-refundable.

The Customer shall not withhold, offset or deduct any amounts from payments for Fees due.

Modo25 shall have the right to charge interest on overdue invoices at the rate of four percent (4%) per annum above the base rate of the Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment, whether before or after judgment.

Proprietary rights

The Customer acknowledges and agrees that Modo25 and/or its licensors own all Intellectual Property Rights in the Services, including the Platform 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, the Platform or the Documentation.

Modo25 shall own all Intellectual Property Rights in the Results. Modo25 hereby grants, subject to the terms of this Agreement, a non-exclusive, revocable, worldwide, limited, personal licence for the Customer to use, copy and otherwise utilise the Results for its normal business purposes. Modo25 hereby grants the Customer a revocable, limited, personal licence to use Modo25's name, mark and/or logo as applicable (including reference to the ‘ASK BOSCO® Index') in the Customer's marketing materials strictly to the extent required in order for the Customer to utilise the aforementioned licence grant in the Results, provided that such use shall be in accordance with any published usage guidelines made available to the Customer by Modo25.

The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

The Customer shall not use any trade mark, copyright, branding elements, or other Intellectual Property Rights of the Customer without Modo25's prior written consent, unless the Customer is entitled to do so under applicable law.

In relation to Customer Data, the Customer:

1. hereby grants Modo25 a fully paid-up, non-exclusive, royalty-free, worldwide, transferable licence to copy, modify and use the Customer Data during the Term for any purpose in connection with this Agreement and providing the Services;
2. warrants that the receipt and use of the Customer Data in the performance of this Agreement by Modo25 (and any subcontractors) does not, and will not, infringe the rights, including any Intellectual Property Rights, of any third party; and
3. shall hold Modo25 harmless from, and on demand indemnify Modo25 and keep Modo25 indemnified in full from and against, all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Modo25, and any sums agreed to in settlement, as a result of, or in connection with, any claim brought against Modo25, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, Modo25's (or its sub-contractors') receipt or use of the Customer Data in accordance with this Agreement.

Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents, to enter into and perform this Agreement and that those signing this Agreement are duly authorised to bind the party for whom they sign.

Confidentiality

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Each party shall protect all Confidential Information using no less than the same standards it applies to its own comparable confidential information and shall not disclose the Confidential Information to any third party, or use the Confidential Information for any purpose other than the implementation of this Agreement.

A party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.

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

Indemnity 

The Customer shall fully indemnify Modo25 (as well as Modo25's affiliates representatives, officers, employees, directors, if applicable) against all claims, actions, liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Modo25 (or Modo25's affiliates representatives, officers, employees, directors, if applicable) arising out of in in connection with:

1. any third party claim alleging that the Customer Data infringes the rights, including any Intellectual Property Rights, of a third party; or
2. the Customer's breach of its confidentiality obligations set out in clause 9 (Confidentiality).

Limitation of liability

Subject to clause 11.3, Modo25's total aggregate liability arising out of or in connection with this Agreement, whether based on contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by the Customer to Modo25 during the twelve (12) months prior to the date on which the liability arose.

Subject to clause 11.3, Modo25 shall not be liable for any: (i) loss of profits or revenue; (ii) loss of contract; (iii) loss of business opportunity; (iv) loss or corruption of data; or (v) indirect, consequential, incidental, special, punitive or exemplary loss or damages of any kind, arising out of or in connection with this Agreement.

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

1. death or personal injury caused by negligence;
2. the Customer's indemnity obligations set out in clause 10.1 (Indemnity);
3. fraud or fraudulent misrepresentation; or
4. any other liability which cannot be excluded or limited by applicable law.

Term and termination

This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue on a rolling monthly basis, unless either party notifies the other party of termination by writing, in which case this Agreement shall terminate upon the expiry of the applicable month. Modo25 shall be entitled to increase the Fees for the Services at any time.

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:

1. the other party commits a material breach of any term of this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so, provided that the notice includes sufficient information regarding the nature of the breach; or
2. a receiver or similar officer is appointed for the other party or its property and the other party makes a general assignment for the benefit of its creditors; the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law; the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.

Without affecting any other right or remedy available to it, Modo25 may terminate this Agreement immediately by giving written notice to the Customer:

1. if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default after fourteen (14) days from being notified to make such payment;
2. if there is any change of Control of the Customer; or
3. for convenience on thirty (30) days' written notice.

Any rights or obligations of the parties set forth in this Agreement which, by their nature, should survive termination of this Agreement, including confidentiality obligations, will survive any such termination.

On termination of this Agreement for any reason:

1. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services, except that the licences granted under clause 8.2 shall survive termination of this Agreement;
2. the Customer shall immediately pay to Modo25 any outstanding Fees and interest; and
3. the Customer shall immediately return, destroy or permanently delete (as directed in writing by Modo25) any materials or data provided to it by Modo25, containing, reflecting, incorporating or based on Modo25's Confidential Information (if any).

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.

General

Force majeure. Modo25 shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Modo25 or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

Dispute resolution

1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then the parties shall follow the procedure set out in this clause:
   1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the account managers of both parties shall attempt in good faith to resolve the Dispute; and
   2. if the account managers are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to a senior representative of each party, who shall attempt in good faith to resolve it; and
   3. if the senior representatives are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to a director of each party, who shall attempt in good faith to resolve it.
2. If the Dispute is not resolved within thirty (30) days after service of the Dispute notice to the directors, the Dispute shall be finally resolved by the courts of England in accordance with under clause 13.11 (Governing law and jurisdiction).

Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Assignment. The Customer shall not, without the prior written consent of Modo25, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Modo25 may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

Severability. In the event that any of the terms contained herein are determined by any competent authority to be invalid or unenforceable to any extent, such term shall to that extent be severed from the body of this Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.

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.

Variation. Modo25 reserves the right to update and change the terms of this Agreement from time-to-time. Modo25 will notify the Customer by issuing a variation notice in accordance with clause 13.10 (Notices). Such updates or changes to this Agreement shall take effect from the date of the related variation notice. The Customer's continued access or use of the Services on or after the date of receipt of the variation notification constitutes the Customer's acceptance of any updates and changes.

Third party rights. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the Company and the Consultant shall have any rights under it.

Notices. Any notice to be given hereunder shall be in writing and shall be sufficiently served either if delivered personally or sent by recorded delivery post to the intended recipient's registered office for the time being. Any notice if posted shall be deemed to have been served on the second business day after posting and if delivered by hand shall take effect on delivery.

Governing law and jurisdiction. This Agreement (and any non-contractual obligations arising from it) shall be governed by and construed in accordance with the law of England (and the courts of England shall have jurisdiction in relation to any dispute that may arise in connection hereto).