Terms of Service
Introduction
This website is operated by Total Chatbots Ltd., trading as “Konversable”, a company incorporated in Scotland with company number SC567566 whose registered office is at Savoy Tower, 77 Renfrew Street, Glasgow, G2 3BZ. Throughout the site, the terms “we”, “us” and “our” refer to Konversable. Konversable offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and / or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of the Agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Background
- Konversable has developed proprietary software and uses third party software known as the Konversable multi-channel chat software, which uses artificial intelligence to conduct textual conversations with humans (the "konversable Platform").
- Konversable provides the konversable Platform as a service to Clients, for the benefit of the Client and it’s Users.
- Konversable agrees to provide and the Client agrees to take and pay for Konversable’s service subject to the terms and conditions of the Agreement.
It is agreed as follows:
-
Interpretation
-
The definitions and rules of interpretation in this clause apply as follows.
“Agreement” means the signed contract between the Client and konversable, comprised of the Cover Sheet and the associated Software as a Service Agreement following a commercial Agreement between the two parties;
"Applicable Law" means any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances;
"Business Day" means a day other than a Saturday, Sunday or bank or public holiday in Scotland;
"Commencement Date" means the date of the Agreement, as set out in the Cover Sheet;
"Confidential Information" means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;
“Cover Sheet” means the cover sheet attached to the front of the Software as a Service Agreement, which sets out the contract particulars;
"Client Data" means all information and content provided by the Client to konversable to facilitate the customisation and use of the Service;
"Client Support Services" means the support services provided by konversable to the Client as described in the Service Levels in the Schedule;
“Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures”: as defined in the Data Protection legislation.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data 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 if electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
"Documentation" means any documents (in whatever media) provided by konversable to the Client to facilitate use of the Service by the Client and its Users;
"Force Majeure" means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of the Agreement unattractive to a party;
"Infringing Data" means any information or data that (i) infringes Applicable Law; or (ii) infringes any third party Intellectual Property Rights; or (iii) includes any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous;
“Initial Term” means the initial term of the Agreement set out in the Cover Sheet;
"Intellectual Property Rights" means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
"Konversable Platform" has the meaning given in Background (A) above, being the software or applications to be provided by konversable as part of the Service;
"Renewal Term” means the renewal term set out in the Cover Sheet;
"Service" means the customisation and remote provision of the Konversable Platform to the Client for the benefit of Users, as specifically set out in the Cover Sheet;
“Service Levels” means the service levels as set out in the Schedule to the Agreement;
“Term” means the Initial Term and any Renewal Term(s);
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
"Users" means members of the public (whether or not clients of the Client) who interact with the Konversable Platform installed on the Website;
"Website" means the Client's website as set out in the Cover Sheet;
- a reference to the Agreement includes its Cover Sheet, appendices and annexes;
- a reference to a ‘party’ includes that party’s personal representatives, trustees, executors, successors and permitted assigns;
- a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, trustees, executors, successors and permitted assigns;
- a reference to a gender includes each other gender;
- words in the singular include the plural and vice versa;
- any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- the table of contents, background section and any clause, schedule or other headings in the Agreement are included for convenience only and shall have no effect on the interpretation of the Agreement; and
- a reference to legislation is a reference to that legislation as in force as at the date of the Agreement.
-
-
Service and availability
- Konversable shall during the Term make the Service available to the Client in
accordance
with the Service Levels excluding:
- scheduled maintenance which konversable shall use commercially reasonable endeavours to undertake from 2am to 6am (UK time);
- emergency maintenance; or
- downtime caused in whole or part by Force Majeure.
- Konversable will use reasonable endeavours to notify the Client in advance of scheduled maintenance but the Client acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by Force Majeure.
- The Client Support Services will be available to the Client through the helpdesk during the hours specified in the Schedule.
- The Client acknowledges that konversable shall be entitled to modify the features and functionality of the Service as part of its ongoing development of konversable Platform. Konversable shall use reasonable endeavours to ensure that any such modification does not adversely affect the Client’s use of the Service.
- Konversable shall supply the Documentation to the Client in order to allow the Client to understand how to use the konversable Platform.
- Konversable shall during the Term make the Service available to the Client in
accordance
with the Service Levels excluding:
-
Supplier warranties
-
Konversable warrants to the Client that:
- konversable has the right, power and authority to enter into the Agreement and grant to the Client the rights contemplated in the Agreement and to supply the Service; and
-
the Service will be supplied:
- with reasonable care and skill;
- in accordance with the Service Levels; and
- subject to clause 2.3 , in accordance in all material respects with the description of the Service provided in the Documentation.
- Konversable does not warrant or represent that the Service will be free from errors and interruptions and 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 Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The warranties in this clause are subject to the Client giving notice to konversable as soon as it is reasonably able upon becoming aware of the breach of warranty. When notifying konversable of a breach the Client shall use its reasonable endeavours to provide konversable with such documented information, details and assistance as konversable may reasonably request.
- Konversable will not be liable under this clause or be required to remedy any problem arising from or caused by the Client’s use of the Service in a manner other than as directed by konversable.
-
The Client acknowledges and agrees that:
- konversable is not and cannot be aware of the extent of any potential loss resulting from any failure by konversable to discharge its obligations under the Agreement;
- the Service has not been designed to meet the Client’s individual requirements and cannot be tested in every operating environment; and
- it is the Client’s responsibility to ensure the facilities and functions of the Service meet the Client’s requirements and will not cause any error or interruption in the Client’s own software or systems.
-
Konversable warrants to the Client that:
-
Client's obligations
-
The Client shall:
-
provide konversable with:
- all necessary co-operation in relation to the Agreement; and
- all necessary access to such information as may be required by konversable in order to provide the Service, including but not limited to Client Data, security access information and configuration services;
- without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
- carry out all other Client responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, konversable may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Users use the Service and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any User's breach of the Agreement;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for konversable, its contractors and agents to perform their obligations under the Agreement, including without limitation the Service;
- ensure that its network and systems comply with the relevant specifications provided by konversable from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to konversable's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
-
provide konversable with:
- The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
-
The Client shall:
-
Use of the Service
- Konversable grants to the Client a non-transferable, non-exclusive right for the Term of the Agreement to use the konversable Platform on the Website and to allow Users to interact with the konversable Platform.
- The Client is liable for all actions performed by a User whilst using the Service and interacting with the konversable Platform.
- Prior to permitting Users to interact with the konversable Platform, the Client shall ensure that all Users are aware of the terms of use of the konversable Platform. For the avoidance of doubt, the Client shall ensure that such terms of use, as a minimum, prohibit Users from undertaking the activities set out in clauses 5.4 to 5.6 (inclusive) of the Agreement.
-
Except to the extent such activities are expressly agreed by the parties, the
Client’s rights to
benefit from the Service does not permit it, or the Users, to:
- copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Service;
- use the Service to provide outsourced services to third parties or make it available to any third party or allow or permit a third party to do so;
- combine, merge or otherwise permit the Service (or any part of it) to become incorporated in any other website or program, nor arrange or create derivative works based on it;
- attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
- to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.
- The Client shall not, and shall use all reasonable commercial endeavours to procure that the Users shall not, introduce any software virus or other malware (including any bugs, worms, logic bombs, trojan horses or any other self propagating or other such program) that may infect or cause damage to the Service or konversable’s systems or otherwise disrupt the provision of the Service.
- The Client shall not be permitted to frame or mirror any part of the Service other than with konversable’s express written consent.
- Konversable reserves the right to monitor usage by the Client and all Users during the Term for the purpose of (among others) ensuring compliance with the terms of the Agreement. Any audit may be carried out by konversable or a third party authorised by konversable.
- In the event of unauthorised use of the Service by the Client or Users, konversable reserves the right to deny the Client or Users access to the Service by blocking, without prior notification, the IP addresses that the Client or Users use to access the Service or by disabling the konversable Platform from the Website.
- In the event that konversable requires the right to access, use, integrate or link to third party information or data for the proper and effective provision of the Service, the Client undertakes to procure from such third party any and all such licences, permissions or consents as may be required by konversable for the provision of the Service.
-
Suspension of access
-
Konversable may suspend or disable access to the Service to the Client if:
- konversable suspects that there has been any misuse of the Service or breach of the Agreement or the Documentation; or
- the Client fails to pay any sums due to konversable by the due date for payment.
- Konversable will notify the Client as soon as possible after suspending the Service.
- Where the reason for the suspension is suspected misuse of the Service or breach of the Agreement, without prejudice to its rights under clause 15 , konversable will take steps to investigate the issue and may restore or permanently suspend access at its discretion. If konversable considers it appropriate to permanently suspend access, it will notify the Client in writing and the Agreement will terminate immediately on service of such notice.
- In relation to suspensions under clause 6.1.2 , access to the Service will be restored promptly after konversable receives payment in full and cleared funds.
- Monthly Fees shall remain payable during any period of suspension notwithstanding that the Client may not have access to the Service.
-
Konversable may suspend or disable access to the Service to the Client if:
-
Fees
- The Client shall pay konversable 50% of the Set-up Fee upfront prior to the commencement of the Service unless agreed otherwise. Such upfront payment shall not be refundable. The remainder of the Set-up Fee shall be payable by the Client to konversable upon completion of the installation of the konversable Platform.
- The Client shall pay konversable the specified Monthly Fee on the last working day of each month, or as otherwise communicated by the Suppler to the Client by email.
-
Invoicing
- Konversable shall invoice the Client for all sums due under the Agreement. All fees will be invoiced and paid in pounds sterling.
- All prices are exclusive of value added tax (if any) or any other locally applicable equivalent sales taxes ("VAT"), which is payable by the Client at the rate and in the manner from time to time prescribed by law.
- The Client shall pay such sums in full within thirty (30) days from the date of invoice, unless expressly agreed otherwise with konversable.
- Amounts payable to konversable under the Agreement shall be paid into konversable’s bank account electronic funds transfer unless otherwise notified by konversable to the Client in writing in accordance with the Agreement.
-
If sums due under the Agreement are not paid in full by the due date:
- konversable may, without limiting its other rights, charge interest on such sums at four per cent (4%) per year above the base lending rate of the Royal Bank of Scotland from time to time in force, and
- interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after decree.
-
Supplier Intellectual Property Rights
- All Intellectual Property Rights in and to the konversable Platform, Documentation or any part of the Service belong to and shall remain vested in konversable (and/or its licensors). Except as expressly stated herein, the Agreement does not grant the Client any rights to, under, or in any Intellectual Property Rights in respect of the Service or the Documentation.
- To the extent that the Client acquires any Intellectual Property Rights in the konversable Platform, Documentation or any part of the Service, the Client shall assign or procure the assignation of such Intellectual Property Rights with full title guarantee (including by way of present assignation of future Intellectual Property Rights) to konversable. The Client shall execute all such documents and do such things as konversable may consider necessary to give effect to this clause.
-
Konversable shall indemnify the Client from and against all losses which are
suffered by the
Client in the event that its use of the Service infringes the Intellectual
Property Rights of any
third party ("Supplier IPR Claim") provided that konversable shall
have no such liability if
the Client:
- has caused or contributed in any material way to konversable IPR Claim by not using the Service in accordance with the Agreement or the Documentation;
- does not notify konversable in writing setting out full details of any Supplier IPR Claim of which it has notice as soon as is reasonably possible;
- makes any admission of liability or agrees any settlement or compromise of the relevant Supplier IPR Claim without the prior written consent of konversable;
- does not let konversable at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Supplier IPR Claim; or
- does not, at konversable’s request and own expense, give konversable all reasonable assistance in the circumstances described above.
-
If any Supplier IPR Claim is made against the Client, konversable shall promptly
and at its
own expense either:
- procure for the Client the right to continue using the Service; or
- modify or replace the infringing part of the Service, and without adversely affecting the functionality of the Service as set out in the Agreement so as to avoid the infringement or alleged infringement,
-
Client Data
- The Client shall not, and shall use all reasonable commercial endeavours to procure that its Users shall not, use Infringing Data on the Service.
- The Client grants a royalty-free, non-transferable, non-exclusive licence to konversable for the duration of the Term to use the Client Data to the extent necessary to perform the Service.
- The Client acknowledges that konversable has no control over any Client Data hosted as part of the provision of the Service and does not actively monitor the content of the Client Data.
- Konversable shall notify the Client immediately if it becomes aware of any allegation that any Client Data may be Infringing Data and konversable shall have the right to remove Client Data from the Service without the need to consult the Client.
- The Client shall indemnify konversable from and against all loss caused to konversable as a result of the Client’s, or its Users, use of Infringing Data on the Service.
-
Data protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 11 , Applicable Laws means (for so long as and to the extent that they apply to konversable) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and konversable is the Processor.
- Without prejudice to the generality of clause 11.1 , the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to konversable and/or lawful collection of the Personal Data by konversable on behalf of the Client for the duration and purposes of the Agreement.
-
Without prejudice to the generality of clause 11.1 , konversable shall, in
relation to any
Personal Data processed in connection with the performance by konversable of its
obligations under the Agreement:
- process that Personal Data only on the documented written instructions of the Client unless konversable is required by Applicable Laws to otherwise process that Personal Data. Where konversable is relying on Applicable Laws as the basis for processing Personal Data, konversable shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit konversable from so notifying the Client;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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, pseudonyrnising 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 European Economic Area
unless the
prior written consent of the Client has been obtained and the following
conditions
are fulfilled;
- the Client or konversable has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- konversable complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- konversable complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data.
- assist the Client. at the Client’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 Client without undue delay on becoming aware of a Personal Data Breach;
- at the written direction of the Client. delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by the Client or the Client's designated auditor and immediately inform the Client if, in the opinion of konversable, an obstruction infringes the Data Protection Legislation.
- Either party may, at any time on not less than 30 days' notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Agreement.
-
Confidentiality
- Each party agrees that it may use the other party’s Confidential Information only in the performance of its rights and obligations under the Agreement and that it shall not disclose the other party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 12 .
- Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to perform the disclosing party’s rights and obligations under the Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this clause 12 as if it were a party.
- Each party may disclose any of the other party’s Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
-
Third party providers
The Client acknowledges that the Service may enable or assist it or any Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Konversable makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client or any Users, with any such third party. Any contract entered into and any transaction completed via any third- party website is between the Client (or Users) and the relevant third party, and not konversable. Konversable recommends that the Client and any Users refer to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Konversable does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Service. -
Limitation of liability
- The extent of the parties’ liability under or in connection with the Agreement (regardless of whether such liability arises in delict, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 14 .
-
Subject to clause 14.6 , konversable’s total liability shall not exceed:
- an amount equal to the Initial Fee and all Monthly Fees paid to konversable in the twelve (12) month period immediately preceding the first incident giving rise to the loss, or
- for incidents occurring in the first 12 months of the Agreement, an amount equal to the paid and projected Initial Fee and Monthly Fees for that period.
- Subject to clause 14.6 , either party shall not be liable for consequential, indirect or special losses.
-
Subject to clause 14.6 , either party shall not be liable for any of the
following (whether direct
or indirect):
- loss of profit;
- loss of data;
- loss of use;
- loss of production;
- loss of contract;
- loss of opportunity;
- loss of savings, discount or rebate (whether actual or anticipated); and
- harm to reputation or loss of goodwill.
- Except as expressly stated in the Agreement, and subject to clause 14.6 , all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
-
Notwithstanding any other provision of the Agreement, the liability of the
parties shall not be
limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- any other losses which cannot be excluded or limited by Applicable Law.
-
Term and termination
-
The Agreement shall commence on the Commencement Date and, unless terminated
earlier in accordance with the terms of the Agreement, shall continue over the
period of the
Initial Term and thereafter shall be automatically renewed for successive
periods of the
Renewal Term unless:
- either party notifies the other party of termination in writing at least thirty (30) days before the end of the Initial Term or any Renewal Term (as applicable), in which case, the Agreement shall terminate upon expiry of the relevant Initial Term or Renewal Term (as applicable); or
- the Agreement is otherwise terminated in accordance with the provisions of the Agreement.
- Konversable may terminate the Agreement at any time by giving notice in writing to the Client if the Client has failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within thirty (30) days after the Client has received notification that the payment is overdue.
-
Without affecting any other right or remedy available to it, either party may
terminate the
Agreement at any time by giving notice in writing to the other party if that
other party:
- commits a material breach of the Agreement and such breach is not remediable;
- commits a material breach of the Agreement (and such breach is remediable) fails to remedy that breach within thirty (30) days of receiving written notice of such breach;
- being the Client only, requires any consent, licence or authorisation to comply with its obligations under the Agreement or access and use the Service and such consent, licence or authorisation is revoked or modified such that it can no longer comply with such obligations or receive access and use the Service;
- is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
- becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
- has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
- has a resolution passed for its winding up;
- has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; or
- is subject to any events or circumstances analogous to those in clauses 15.3.4 to 15.3.8 in any jurisdiction.
- The right of a party to terminate the Agreement pursuant to clause 15.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Agreement.
- If a party becomes aware that any event has occurred, or circumstances exist, which may entitle the other party to terminate the Agreement under this clause 15 , it shall immediately notify the other party in writing.
- Termination or expiry of the Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
-
The Agreement shall commence on the Commencement Date and, unless terminated
earlier in accordance with the terms of the Agreement, shall continue over the
period of the
Initial Term and thereafter shall be automatically renewed for successive
periods of the
Renewal Term unless:
-
Post-termination provisions
-
In the event of termination of the Agreement for any reason:
- the right to access the Service provided under the Agreement shall terminate immediately;
- konversable shall disable the Client’s access to the konversable Platform and cease providing the Service;
- the Client shall within seven (7) days return or destroy (at konversable’s option) all konversable’s Confidential Information or Documentation in its possession or under its control and all copies of such information; and
- all provisions of the Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
- On the termination or expiry of the Agreement, konversable shall return or destroy (at the Client’s option) all Client Data.
-
In the event of termination of the Agreement for any reason:
-
Force majeure
Konversable shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the 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 konversable or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, 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 Client is notified of such an event and its expected duration. -
Conflict
If there is an inconsistency between any of the provisions in the main body of the Agreement and the Cover Sheet, the provisions in the Cover Sheet shall prevail. -
Variation
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). -
Waiver
No failure or delay by a party to exercise any right or remedy provided under the 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. -
Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. -
Severance
- If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
-
Entire Agreement
- The Agreement constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
-
Assignation
- Neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
-
No partnership or agency
Nothing in the 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 Agreement does not create any rights in favour of third parties under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce or otherwise invoke any provision of the Agreement. -
Notices
-
A notice or other communication given to a party under or in connection with the
Agreement
will:
- be signed by, or on behalf of, the party giving it or, in the case of email, contain appropriate information identifying the sender; and
- be sent to the relevant party at the address of such party set out in the Agreement or, if sent by email, to an email address nominated by or commonly used by the parties for correspondence.
-
Notices may be given, and are deemed received:
- by hand/commercial courier/ delivered personally: at the time of delivery; or
- by recorded delivery post: at 9.00 am on the second (2nd) Business Day after posting; or
- by email: 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received.
- All references to time are to the local time at the place of deemed receipt.
- This clause does not apply to notice given in legal proceedings, arbitration or other dispute resolution proceedings.
- For the purposes of this clause, if deemed receipt is not within business hours (meaning 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice or other communication is deemed to have been received when business next starts in the place of receipt.
-
A notice or other communication given to a party under or in connection with the
Agreement
will:
-
Counterparts
- The Agreement may be executed in any number of counterparts and by the parties on different counterparts in accordance with the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015, but shall not be effective until each party has executed at least one counterpart.
- Each counterpart shall constitute an original of the Agreement but all the counterparts shall together constitute one and the same Agreement.
- If executed in counterpart, the date of the Agreement is the last date of delivery of all counterparts.
-
Governing law and jurisdiction
The 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 construed in accordance with the laws of Scotland.- The parties irrevocably agree that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claims).
The Schedule
Service Levels
Service Level Description | Target Service Level |
---|---|
Availability of Service 24 hours a day, seven days a week | Supplier will make reasonable efforts to ensure maximum availability of the konversable Platform. Konversable’s infrastructure generally operates at 99%availability (save for scheduled or planned maintenance), but such availability is not guaranteed. |
Availability of Client Support Services | Problems can be reported to konversable, who agrees to provide a timely response and support in line with the Response and Support Times noted in the below table and based on konversable’s standard working hours from 9am to 5pm Monday to Friday. |
Response and Support Times
Category | Description | Response Time | Resolution Timescale |
---|---|---|---|
Major Incident | All Users are unable to access the Service all of the time | 1 hour | 2 hours |
High | Some Users are unable to access the Service all of the time | 4 hours | 1 day |
Medium | Some Users are unable to access the Service some of the time | 1 day | 2 days |
Low | Does not affect access to the Service | 2 days | 4 days |
