Gatekeeper Online Master Subscription Agreement -
Terms of Service

 

1. Definitions

In this Agreement the following defined terms shall have the meanings set out below:

“Administrator(s)”

means those Users designated by You who are authorised to purchase subscriptions by signing or electronically completing online Order Forms and to create User accounts and otherwise administer Your use of the Service;

“Affiliate”

means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party;

“Agreed Start Date”

means the date agreed by You and Gatekeeper for the start of Onboarding Services (if any) delivery, as set out in each Order Form.

“Agreement”

means this Online Gatekeeper Master Subscription Agreement (including all exhibits and attachments), any Order Forms, and any online documents incorporated by reference herein, as such materials may be updated by Gatekeeper from time to time in its sole discretion;

“Business Days”

means Monday to Friday on business days in the country of the Customer as identified in the address of the Customer as set out in the Order Form;

“Business Hours”

means 9-5pm local time, on each Business Day;

“Chronic Service Outage”

means where the Services are not available for at least 90% uptime: (i) on three (3) occasions within any six (6) consecutive calendar months; or (ii) on four (4) occasions within any nine (9) consecutive calendar months. (Please note that Planned Maintenance is excluded from the calculation of uptime)

“Confidential Information”

means any and all information in any form whatsoever relating to Gatekeeper or You, or the business, prospective business, prices, finances, technical process, computer software (both source code and object code) and IPR of Gatekeeper or You (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without either use of the Confidential Information or breach of any obligation owed to the disclosing party; or (iv) is received from a third party without breach of any obligation owed to the disclosing party;

“Consequential Loss”

means pure economic loss, special loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time

“Control”

means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;

“Customer Data”

means all data, information or material imported into the Services for the purpose of You using the Services or facilitating use of the Services;

“Data Processing Agreement”

means the data processing agreement as amended and published at https://www.gatekeeperhq.com/dpa. Gatekeeper will provide notification of material changes by giving at least thirty (30) days before changes take effect;

“Effective Date”

means the start date of this Agreement as set out in the first Order Form;

“eSign EULA”

means the end user licence agreement (EULA) applicable to eSign services as amended and published at http://www.gatekeeperhq.com/esign-eula. Gatekeeper will provide notification of material changes by giving at least thirty (30) days before changes take effect;

“Feedback”

means feedback, innovations or suggestions created by Users or You regarding the attributes, performance or features of the Services;

“Fees”

means the fees set out in each Order Form payable by You during the Subscription Term of each Order Form;

“Force Majeure”

means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where Gatekeeper ceases to be entitled to access the Internet for whatever reason) transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;

“Functional Description”

means the description of the Services set out in each Order Form;

“Gatekeeper”

means Cinergy Technology Limited, trading as ‘Gatekeeper’;

“Illegal Content”

means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;

“IPR”

means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;

“Order Form(s)”

means the order form evidencing the initial subscription for the Services and any subsequent order forms, specifying, among other things, the number of subscriptions and other services contracted for, the applicable Fees, the invoicing period, and other charges as agreed between the parties;

“Planned Maintenance”

means maintenance, Upgrades, updates, installation of new versions and repairs which are non-critical and not urgent, to hardware and software. Gatekeeper shall in normal circumstances provide You with at least 5 Business Days notice (or, when required, to ensure the security of the Gatekeeper and related data, give at least 8 hours notice via the Services);

“Privacy Policy”

means Gatekeeper’s privacy policy published at https://www.gatekeeperhq.com/privacy_policy which may be modified from time to time. Gatekeeper will provide notification of material changes to the privacy policy giving at least thirty (30) days before changes taking effect;

"Quota"

means the Quota of system objects (e.g. Contracts, Suppliers) set out in the Order Form;

“Services”

means Gatekeeper’s online procurement, contract management, supplier management, workflow, collaboration, analysis, sourcing or other services and associated content and Upgrades, developed, operated, and maintained by Gatekeeper, and made accessible via https://www.gatekeeperhq.com or another web site or IP address designated by Gatekeeper from time to time, or ancillary online or offline products and services provided to You by Gatekeeper, to which You are being granted access under this Agreement, as set out in more detail in each Order Form;

“Subscription Start Date”

means the subscription start date set out in each Order Form;

“Subscription End Date”

means the subscription end date set out in each Order Form;

“Subscription Term”

means the period set out in each Order Form during which a specified number of Users are authorised to use the Services set out in such Order Form;

“Term”

means the term of this Agreement which start on the Effective Date and continues until the date on which all Subscription Terms included in all Order Forms have expired or been terminated;

“Upgrades”

means a new version of the Services released by Gatekeeper that may add new and different functions to or increases the capacity of its Services, and includes revisions to documentation as a result of such Upgrades. An Upgrade does not include products within the Services that are not available at the time of completing an Order Form and for which Gatekeeper may make an additional charge;

“Users”

means Your employees, representatives, consultants, contractors, subcontractors, or agents who are authorised to use the Services and have been supplied user identifications and passwords by You (or by Gatekeeper at Your request). All such User(s) may be identified within the Gatekeeper application system administration area where the User(s) record is stored. All User(s) records in the Gatekeeper application with User(s) status flag set to “active” are User(s);

“You” or “Your”

means the customer named in the Order Form.

 

  1. Services
    1. Gatekeeper agrees to make the Service available to You from the Effective Date for the Term of this Agreement. The Services shall be provided to You as set out in each Order Form subject to the terms of this Agreement and each Order Form. You agree that Your purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Gatekeeper with respect to future functionality or features.
    2. Where the Services set out in the Order Form include eSign services the terms of the eSign EULA shall apply in addition to use of eSign and You shall ensure that Users are aware of and comply with the terms of the eSign EULA.
    3. Gatekeeper shall use best efforts to make the Services available 24 hours a day, 7 days a week, excluding Planned Maintenance and any unavailability caused by Force Majeure.
    4. Gatekeeper shall use best efforts to provide support for the Services during Business Hours:
Severity Description Minimum Response Time Target Resolution Time
P1 - Critical Total loss of service 15 mins 2 hours
P2 - High Major impact on day to day operations 1 hour 4 hours
P3 - Medium Minor impact on day to day operations 4 hours 3 Business Days
P4 - Low Cosmetic issues 8 hours 5 Business Days

 

  1. Licence to use the Services
    1. Subject to Your payment of the Fees, You are granted a non-exclusive, non-transferable licence to permit Users and Affiliates to use the Services (including any associated IPR and Confidential Information of Gatekeeper) from the Effective Date for the term of each Order Form for Your internal business operations. Such licence permits You to make copies of software or other information necessary for You to receive the Services via the Internet. No additional implied rights are granted beyond those specifically mentioned in this clause 3i.
    2. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that You have any right to obtain source code for the software comprised within the Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Solution or Services interoperable with other software Gatekeeper will provide access to any relevant source code or information provided that You make a written request identifying the relevant details of the Services with which operability is sought and the nature of the information needed. Gatekeeper has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
    3. You may not: (i) lease, loan, resell, assign, licence, distribute or otherwise permit access to the Services; or (ii) use the Services to provide ancillary services related to the Services; (iii) permit access to or use of the Services by or on behalf of any third party, except as specifically permitted in this Agreement; (iv) create Internet “links” to the Services or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vi) access the Services if You are a direct competitor of Gatekeeper, unless You disclose such to Gatekeeper and obtain Gatekeeper’s prior written consent to access the Services.
    4. Gatekeeper reserves the right to electronically monitor Your use of the Services.
  1. Onboarding Services
    1. Gatekeeper Onboarding services consist of a number of onboarding hours with an implementation specialist or equivalent Gatekeeper expert(s) to assist with the configuration of the specific Services as set out in each Order Form. This time will consist of phone conversations, email-based support, and any other activities related to the configuration of your Services. Onboarding Services are delivered remotely. If we determine you would benefit from additional onboarding assistance, we may provide it to You at our sole discretion.
Service Maximum Hours Included Delivery Period from the Agreed Start Date
Starter 10 4 weeks
Pro 17 6 weeks
Enterprise 30 12 weeks
Custom As set out in the Order Form As set out in the Order Form
Supplier Portal 4 weeks
Employee Portal 4 4 weeks
Risk Module 4 4 weeks
Spend Module 4 4 weeks
Help Desk 4 4 weeks

 

  1. Intellectual Property Rights
    1. All IPR and title to the Services (save to the extent these incorporate any Customer Data, Your IPRs or any third party owned item) shall remain with Gatekeeper and/or its licensors and subcontractors. No interest or ownership in the Services, IPR or otherwise is transferred to You under this Agreement.
    2. You retain sole ownership of all rights, title and interest in and to Customer Data and Your pre-existing IPRs and You shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data. You grant Gatekeeper a non-exclusive, licence to use Customer Data, Your IPRs and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Services.
    3. You are not allowed to remove any proprietary marks or copyright notices from the Services.
    4. You grant Gatekeeper a non-exclusive, non-transferable, revocable licence to display Your name, logo and trademarks, as designated and/or amended by You from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
    5. You assign all rights, title and interest in any Feedback to Gatekeeper. If for any reason such assignment is ineffective, You shall grant Gatekeeper a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
    6. Gatekeeper may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
  1. Third Party Providers
    1. During the Term You may, at your own discretion, enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party suppliers, advertisers or sponsors showing or otherwise making available their goods and/or services on or through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third party. You agree that Gatekeeper and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third party.
  1. Fees, Invoicing and Payment
    1. Gatekeeper shall charge You the Fees set out in each Order Form for subscriptions to the Services.
    2. All invoices shall be issued in the currency set out in the Order Form.
    3. All Fees exclude any Value Added Tax (VAT), taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties based solely on Gatekeeper’s income in addition, where applicable.
    4. All Fees are non-cancellable and all amounts paid are non-refundable.
    5. Fees remain fixed for the Subscription Term set out in an Order Form.
    6. Gatekeeper will issue invoices to You as set out in the Order Form.
    7. You shall pay all Fees for properly rendered, genuinely undisputed invoices as specified in the Order Form. If You believe that any invoice is incorrect, You must notify Gatekeeper in writing within 60 days of the invoice date.
    8. Failure to provide Gatekeeper with a valid Purchase Order at the time of procurement does not constitute a valid reason for delay in payment.
    9. You shall pay Gatekeeper in the currency specified in the Order Form.
    10. Where payment of any Fee is not received within 30 days of the due payment date, Gatekeeper may, without liability to You, disable Your password, account and access to all or part of the Services and Gatekeeper shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid. Gatekeeper shall be entitled to charge interest on overdue Fees at the applicable statutory rate.
    11. Gatekeeper reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments. You agree to provide Gatekeeper with complete and accurate billing and contact information. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and Administrator. You agree to update this information promptly upon any change to it. If the contact information You have provided is fraudulent, Gatekeeper reserves the right to terminate Your access to the Services in addition to any other legal remedies it may have.
    12. Travel and entertainment expenses incurred by Gatekeeper associated with Your implementation are not included in the implementation costs and will be billed separately at cost, subject to Your prior approval.
  1. Confidentiality
    1. Each party may use Confidential Information of the other only for the purposes of this Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental or other authority with relevant powers to which either party is subject.
    2. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
    3. Each party may disclose the Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
    4. Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
    5. The obligations of confidentiality under this Agreement do not extend to information that is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    6. If either party is required to disclose any Confidential Information pursuant to clause 7v. such party shall, where lawfully permitted to do so: (i) provide the other party with prior notice of such compelled disclosure; (ii) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (iii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
    7. Except as expressly provided in this Agreement, if a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of a disclosing party in breach of this clause 7, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
    8. Notwithstanding the provisions of clause 7, Gatekeeper may use and report on Customer Data and other data and metrics related to Your use of the Services in an aggregate and anonymous manner to support benchmarking or similar features of the Service provided that such use does not result in disclosure of Your Confidential Information.
  1. Data Protection
    1. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
    2. To the extent that Customer Data contains personal data and personal data is processed when You or Users use the Services, the parties acknowledge that Gatekeeper is a data processor and You are a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the Data Processing Agreement (https://www.gatekeeperhq.com/dpa).
    3. If a third party alleges infringement of its data protection rights, Gatekeeper shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
    4. To the extent that Gatekeeper collects Your personal data when You and Users register to use the Services, Gatekeeper shall collect and process such personal data in accordance with its Privacy Policy.
  1. Security
    1. Gatekeeper permits You to specify which Users or Affiliates may access the Services through its standard application security options
    2. You, Users and Affiliates must ensure that each password is only used by the user to which it has been assigned. You are responsible for any and all activities that occur under Your account and via the Your passwords. You will immediately notify Gatekeeper if You become aware of any unauthorised use of the Your account, Your passwords or breach of security. Gatekeeper shall have no liability for any loss or damage arising from Your failure to comply with these requirements.
    3. You shall not: (i) send spam or otherwise duplicative or unsolicited messages in breach of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or breaching the rights of third parties; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) modify, interfere with or disrupt the integrity or performance of the Services (including the data contained therein); or (v) attempt to gain or permit unauthorised access to the Services or its related systems or networks.
    4. Gatekeeper may suspend access to the Services, or portion thereof, at any time, if in Gatekeeper’s sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of You, Users or Affiliates.
  1. Insurance
    1. During the Term, Gatekeeper shall maintain insurance with insurers carrying A (Excellent) Syndicate rating from A.M. Best or better which covers Gatekeeper’s statutory and contractual liabilities under the Agreement, including but not limited to Employer’s Liability, Professional Indemnity, Public and Products Liability and Cyber Insurance. Gatekeeper will within 14 days of receiving a written request from the Customer provide the Customer with evidence of the existence of such insurance cover and a summary of the terms and levels of cover.
  1. Termination
    1. Either party may terminate this Agreement immediately with cause, by giving written notice, if the other party: (i) ceases or threatens to cease or carry on business; or (ii) Is unable to pay its debts or enters into compulsory insolvency or voluntary liquidation; or (iii) convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or (iv) has an administrator, receiver, manager or similar official appointed; or (v) Is affected by a similar event under the law of any other jurisdiction; or (vi) a Force Majeure event lasts for more than 28 days.
    2. Either party may terminate this Agreement with cause upon giving the other party 30 days written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 10 days of receipt of the notice.
    3. Gatekeeper may terminate this Agreement or the provision of any Services with immediate effect by giving written notice, if: (i) You have used or permitted use of the Services other than in accordance with the terms of this Agreement; or (ii) Gatekeeper is prohibited under applicable law, or otherwise from providing the Services.
    4. You may terminate this Agreement including any Order Form prior to the end of the Term if there are Chronic Service Outages and shall receive a pro-rated refund of the unused portion of the annual access fee for such Service applicable to the period from the date of termination to the end of the Term.
    5. Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. All clauses which by their nature should survive termination shall survive the expiry or termination of this Agreement and shall remain in force and effect.
    6. Upon termination of this Agreement, You shall promptly pay all unpaid Fees and all licences granted under the Agreement shall terminate on the effective date of termination. However where You have terminated the Agreement as a result of Gatekeeper’s breach, Gatekeeper shall refund any prepaid Fees covering the remainder of any Subscription Terms after the effective date of termination.
    7. On termination Gatekeeper shall: (i) cease providing the Services to You; and (ii) within 30 days after the effective date of termination, after receipt of your written request, Gatekeeper will make available for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After expiry of the 30 day period, Gatekeeper shall, unless legally prohibited from doing so, delete all Customer Data in its systems or otherwise in its possession or under its control. If You require any Customer Data to be returned in a different format Gatekeeper reserves the right to charge for this additional service on a time and materials basis.
    8. This Agreement commences on the Effective Date and continues until all Subscription Terms in all Order Forms have expired or been terminated. All subscriptions commence on the Subscription Start Date specified in the relevant Order Form and continue for the Subscription Term specified therein. Subscriptions shall automatically renew for additional periods of one (1) year to ensure non-interruption of Customer Data, the Data Processing Agreement and the supporting Services at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least 45 days prior to the end of the relevant Subscription Term.
    9. Provided that this Agreement has not been terminated due to Your breach, Gatekeeper will provide reasonable assistance and information to enable Customer Data to be transitioned to a new platform. Such assistance will be charged for on a time and materials basis.
  1. Warranties
    1. Each party represents and warrants that: (i) it has the legal power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which hit is a party and is in accordance with any applicable laws; and (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
    2. Gatekeeper represents and warrants that: (i) it will provide the Services with reasonable skill and care, in a professional manner in accordance with good industry practice; (ii) the Services shall perform materially in accordance with the Functional Description; and (iii) the functionality of the Service will not be materially decreased during a Subscription Term.
    3. You represent and warrant that: (i) You have not falsely identified yourself nor provided any false information to gain access to the Services; (ii) You rightfully own the necessary user rights, copyrights and ancillary copyrights and permits required for You to fulfil Your obligations under this Agreement; (iii) Your billing information is correct; (iv) You, Users and Affiliates shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement. In particular You, Users and Affiliates shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Gatekeeper in writing; (v) You shall be liable for any breach of this Agreement by a User or Affiliate; (vi) You shall ensure that its network and systems comply with the relevant specification provided by Gatekeeper from time to time and that You are solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to the Gatekeeper data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the Internet.
    4. No warranty is made regarding the results You can achieve from using the Services or that the Services will operate uninterrupted or error free.
    5. Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
  1. Limitation of Liability
    1. Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
    2. Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
    3. Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
    4. Subject to clauses 13i. to 13iii. inclusive the total liability of Gatekeeper to You in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by You to Gatekeeper during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
    5. You shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Users or Affiliates who access the Services as if such acts, omissions or negligence had been committed by You.
    6. You shall not raise any claim under this Agreement more than 1 year after (i) the discovery of the circumstances giving rise to a claim; or (ii) the effective date of termination or expiry of this Agreement.
    7. The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
  1. Indemnity
    1. Gatekeeper shall at its own expense, defend or at its own option settle any claim brought against You by a third party on the basis of an infringement of any IPR by the Services (excluding any claim deriving from and Customer Data or item provided by You ) and pay any final judgment entered against You on such issue or any settlement thereof, provided that: (i) You notify Gatekeeper promptly of each such claim; (ii) Gatekeeper is given sole control of the defence and/or settlement; and You fully co-operates and provides all reasonable assistance to Gatekeeper in the defence or settlement.
    2. If all or part of the Services becomes, or in the opinion of Gatekeeper may become, the subject of a claim or suit of infringement, Gatekeeper shall at its own expense and sole discretion: (i) procure for You the right to continue to use the Services or the affected part thereof; (ii) replace the Services or affected part with another suitable non-infringing service or software; or (iii) modify the Services or affected part to make the same non-infringing.
    3. Gatekeeper shall have no obligations under clauses 14i. and 14ii. above to the extent that a claim is based on: (i) a modification of the Services by anyone other than Gatekeeper; or (ii) the combination, operation or use of the Services with other services or software not provided by Gatekeeper if such infringement would have been avoided in the absence of such combination, operation or use; or (iii) the use of the Services in any manner inconsistent with this Agreement; or (iv) Your negligence or wilful misconduct.
    4. Clauses 14i. to 14iii. state Your sole and exclusive rights and remedies and Gatekeeper’s entire obligations and liability for any claims made under these indemnity clauses.
    5. You shall defend, indemnify and hold Gatekeeper and its employees, subcontractors or agents harmless from and against any costs, losses liabilities and expenses including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by You, a User or Affiliate or any IPR with respect to use of the Services outside the scope of this Agreement: or (ii) use by Gatekeeper of any Customer Data or item provided by You, an Affiliate or User, in particular storage or publication on the Internet or any Illegal Content; or (iii) and access to or use of the Services by a User or Affiliate or a third party; or (iv) breaches of data protection law or regulations resulting from Gatekeeper processing data on behalf of and in accordance with Your instructions or those of a User or Affiliate; or (v) any breach of this Agreement by a User or Affiliate; and Gatekeeper shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet or breaches of third party rights from continuing.
    6. Subject to clauses 14i. to 14v. inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceedings or demand that may be brought, made or prosecuted against the second party under any indemnity contained in clause 14. This indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
  1. Assignment
    1. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
  1. Relationship between the Parties
    1. You and Gatekeeper are independent contractor and nothing in this Agreement will be construed as creating an employer-employee relationship.
  1. Notices
    1. Gatekeeper may give notice by means of a notice on the Service, electronic mail to Your email address on record in Gatekeeper’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email) or posting a notice on the Services.
    2. You may give notice to Gatekeeper (such notice shall be deemed given when received by Gatekeeper) at any time by any of the following: letter delivered by nationally recognised delivery service or first class postage prepaid mail to Gatekeeper at the following address: Cinergy House, 1 Boyne Terrace, St Helier, Jersey, JE2 3WA, in either case, addressed to the attention of: “Legal”.
  1. Miscellaneous
    1. This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
    2. Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
    3. Gatekeeper may change or modify the terms of this Agreement upon giving You 30 days notice via email. All changes shall be deemed to have been accepted by You, unless You terminate the Agreement prior to the expiry of the 30 day period.
    4. Except with respect to Your obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
    5. In the event of any conflict between the terms of this Agreement (including any exhibits or other documents referred to herein) and the terms of any Order Form, the terms of the Order Form shall prevail, followed by the eSign EULA in relation to eSign services only, then the main terms of the Agreement, the DPA and the Privacy Policy.
    6. Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 or any rights that a third party may have under applicable law.
    7. This Agreement shall be interpreted according to the Laws of England and Wales and subject to clause 19ix. below, the parties agree to submit to the exclusive jurisdiction of the English courts.
    8. Any dispute arising out of this Agreement shall be attempted to be settled between the parties by mutual discussions within 30 days of receipt of notice of a dispute/breach of contract by either party. If the dispute is not settled within 30 days the parties agree to enter into mediation to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of receiving notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice. No party may commence any court proceedings/arbitration in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
    9. The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.