Terms and Conditions

TERMS AND CONDITIONS

This agreement, which is made between Cubic and Customer (as defined hereafter), incorporates and is subject to these terms and conditions, as may be updated from time to time by Cubic.

1. Interpretation

1.1  Capitalised terms used in these terms and conditions shall have the meanings set out below:-

“Agreement” means the contract formed between Cubic and Customer in accordance with clause 2, or by such other means as may be agreed between the Parties, and incorporating these Terms;
“Authorised Users” those employees, agents and independent contractors of Customer who are authorised by Customer to use the Services and the Documentation, as further described in clause 9.2.2;
“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are usually open for business;
“Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14;
“Cubic” refers to Cubic Interactive Limited a company registered in England and Wales (company number 04031797) with a registered office address at The Sanctuary Suite 2, 23 Oak Hill Grove, Surbiton, Surrey, KT6 6DU;
“Customer” refers to Cubic’s counterparty as determined in accordance with clause 2;
“Customer Data” the data inputted by Customer, Authorised Users, or Cubic on Customer’s behalf for the purpose of using the Services or facilitating use of the Services by Customer or Authorised Users;
“Customer’s Chargify Account” has the meaning set out at clause 4.2;
“Data Protection Legislation” means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing the Data Protection Directive 95/46/EC of 24 October 1995 or the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002;
“Documentation” the document(s) made available to Customer by Cubic online via www.gekko.email or such other web address notified by Cubic to Customer from time to time which sets out a description of the Services and the user instructions for the Services;
“Insolvency Event” each and any of the following in relation to a Party: (a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a Party; (ii) the appointment of a liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of a Party or any of its assets; (iii) the enforcement of any security over any assets of a Party; or (iv) the attachment, sequestration, distraining upon or execution over or affecting any material asset of a Party, which in any case is not withdrawn or dismissed as soon as reasonably practicable; (b) the Party is unable to pay its debts as they fall due or is insolvent, or the other Party perceives (acting reasonably) that to be the case; or (c) the Party enters into a composition or arrangement with any creditor, or its creditors or any class of them;
“Initial Subscription Term” the period of one (1) calendar month immediately following the Subscription Date;
“Intellectual Property Rights” any and all patents, trade marks, business names, copyright, moral rights, database rights, rights in designs, rights in inventions, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting anywhere in the world and including all applications and rights to apply for any of them together with all or any associated goodwill;
“Normal Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day;
“Party” means either Cubic or Customer and “Parties” means both Cubic and Customer;
“Registration Form” the online registration form for the Services set out at www.gekko.email to be completed and submitted to Cubic by Customer;
“Renewal Period” the period described in clause 18.1;
“Services” the provision of a web based e-mail collaboration tool by Cubic to Customer under the Agreement via www.gekko.email or any other website notified to Customer by Cubic from time to time, as more particularly described in the Documentation;
“Software” the online software applications provided by Cubic as part of the Services;
“Subscription Date” has the meaning set out at clause 6.2;
“Subscription Fees” the subscription fees payable by Customer to Cubic for the Services during the Subscription Term, as published by Cubic at on the Website from time to time, and as calculated in accordance with clause 13 of these Terms;
“Subscription Term” has the meaning given in clause 19.1 (being the Initial Subscription Term together with any subsequent Renewal Periods);
“Support Services” means the technical support, software updates and enhancements provided by Cubic post launch of the software with the Customer;
“Terms” these terms and conditions, as may be updated or amended from time to time by Cubic;
“Third Party Services” means any services of a third party which are procured by Cubic in relation to the Services;
“Trial Period” has the meaning set out at clause 5.1;
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
“Website” means the following website[s]: www.gekko.email and all associated web pages and content of each, excluding any part of the Services or the Registration Form.

1.2  In these Terms, unless the context otherwise requires:

1.2.1    each gender includes the others and the singular includes the plural and vice versa;

1.2.2    references to clauses are to conditions of these Terms;

1.2.3    general words are not limited by example;

1.2.4    the terms “include(s)” or “including” shall be construed without limitation as to the generality of the preceding words;

1.2.5    references to persons include individuals, unincorporated bodies, government entities, companies and corporations;

1.2.6    the headings are for convenience only and shall not affect the interpretation of the Agreement;

1.2.7    references to legislation:

(a)     include any secondary or subordinate legislation made under or pursuant to that legislation; and

(b)    exclude any re-enactment or modification of that legislation made on or after the date of the Agreement to the extent they make either Party’s obligations more onerous; and

1.2.8    writing includes manuscript, telexes, facsimiles, e-mails, electronic communications delivered by the Services or Software and other permanent forms.

2. Agreement

By notifying Cubic in writing of its acceptance of these Terms, Customer makes an offer to Cubic in respect of the Services which Cubic make generally available, which, if Cubic notifies Customer it has accepted such offer, will constitute a binding Agreement.

3. Services

3.1  Subject to the terms of the Agreement, and payment of the Subscription Fees by Customer, Cubic shall provide the Services and make available the Documentation to Customer in accordance with the terms of the Agreement.

3.2  Cubic shall use commercially reasonable endeavours to ensure that access to the Services of Customer and Authorised Users is not interrupted by any event within Cubic’s control, and to make the Services available 24 hours a day, seven days a week, except for:

3.2.1    planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

3.2.2    unscheduled maintenance performed outside Normal Business Hours, provided that Cubic has used reasonable endeavours to give Customer at least two (2) Normal Business Hours’ notice in advance.

3.3  Cubic will, as part of the Services and at no additional cost to Customer, provide Customer with Cubic’s standard customer support services in accordance with Cubic’s support policies as published on the Website at the time that the Services are provided.  Cubic may amend such policies in its sole and absolute discretion from time to time.

4. Registration Information

4.1  In registering for the Services, on either a trial basis (in accordance with clause 5) or a subscription basis (in accordance with clause 6), Customer agrees to provide accurate and up to date information as required to complete the Registration Form or as otherwise required by Cubic, and to keep Cubic informed of any changes to this information.

4.2  Customer hereby acknowledges and agrees that, by entering its information onto the Registration Form in accordance with clause 4.1: (i) Customer shall authorise Cubic to create on its behalf an account with Chargify LLC at https://cubic-interactive-limited.chargify.com/subscribe/4sjjp2rn/gekko (“Customer’s Chargify Account”); and (ii) upon creation of Customer’s Chargify Account, Customer will have entered into a separate contract with Chargify LLC in respect of the use of the Customer’s Chargify Account which shall be subject to Chargify LLC’s terms and conditions (available here: https://www.chargify.com/terms-conditions/).

4.3  Customer hereby acknowledges and agrees that: (i) Cubic shall have no liability whatsoever in relation to Customer’s Chargify Account; and (ii) Customer shall be responsible for the use of, and termination of, Customer’s Chargify Account.

5. Trial Period

5.1  Subject always to Cubic’s discretion, Customer may be entitled to register for the Services on a trial basis for a period of one (1) calendar month from the date on which Cubic notifies Customer by email as having accepted the Registration Form (the “Trial Period”).  In order to qualify for a Trial Period, Customer will need to complete the Registration Form. Customer shall be entitled to a maximum of one (1) Trial Period.

5.2  These Terms shall apply to the provision of the Services during the Trial Period in the same way as they would apply during the Subscription Term.  In consideration for the grant of the Trial Period, Customer agrees to be bound by these Terms for the duration of the Trial Period.

5.3  If Customer wishes to cancel its registration prior to the expiry of the Trial Period, Customer must provide notice in writing to Cubic at info@gekko.email.

6. Subscription

6.1  Subject to the expiry of a Trial Period to which Customer may be entitled in accordance with clause 5, the first time that Customer attempts to access the Services, or such earlier time on written request from Cubic, Customer shall be required to provide to Cubic valid up-to-date and complete payment details in such form as Cubic may require.

6.2  Customer shall not be entitled to access the Services until the date on which it provides acceptable payment details in accordance with clause 6.1 (the “Subscription Date”).

6.3  Customer’s Chargify Account shall be used for payment of the Subscription Fees for the Initial Subscription Period and any subsequent Renewal Period.

6.4  If Customer fails to provide acceptable payment details in accordance with clause 6.1 and 6.2 within twenty eight (28) days of the expiry of a Trial Period, Cubic may at its sole discretion cancel Customer’s registered account.  If Customer wishes to reactivate its account within the three (3) months following expiry of the Trial Period, Cubic may at its sole discretion reactivate Customer’s account on written request.

7. Customer Data

7.1  Customer shall own all right(s), 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 the Customer Data.

7.2  Customer shall maintain procedures to facilitate reconstruction of any lost Customer Data and is responsible for carrying out all necessary back up procedures for its own benefit to ensure that Customer Data integrity is maintained in the event of loss of Customer Data for any reason.  Customer agrees that it will not be liable under any circumstances for any consequences arising from lost or corrupted Customer Data which would not have been lost if such procedures had been maintained.

7.3  Without prejudice to clause 7.2, Cubic will use its reasonable endeavours to ensure that Customer Data is maintained securely and backed up in accordance with Appendix section 3.0 from time to time during the term of the Agreement.  In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy with respect to Cubic shall be that Cubic uses reasonable endeavours to restore the lost or damaged Customer Data from the latest available back up of such data that Cubic maintains.  Cubic shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Cubic to perform services related to data maintenance and back-up).

7.4  Where Customer Data has been deleted or removed by Customer, or by Cubic in accordance with Customer’s instructions, it shall be at Cubic’s absolute discretion as to whether it will provide any service for the recovery of this Customer Data.

8.  Data Protection

If Cubic processes any personal data on Customer’s behalf when performing its obligations under the Agreement, the Parties record their intention that Customer shall be the data controller and Cubic shall be a data processor and in any such case:

8.1  Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Customer and the Authorised Users are located in order to carry out the Services and Cubic’s other obligations under the Agreement;

8.2  Customer shall ensure that it is entitled to transfer the relevant personal data to Cubic so that Cubic may lawfully use, process and transfer the personal data in accordance with the Agreement on Customer’s behalf;

8.3  Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable Data Protection Legislation;

8.4  Cubic shall process the personal data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by Customer from time to time; and

8.5  Each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

9. Authorised Users

9.1  Subject to Customer fulfilling its obligations under the Agreement, including paying any Subscription Fees due in accordance with the Agreement, Cubic hereby grants to Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the term of the Agreement solely for Customer’s internal business operations.

9.2  In relation to the Authorised Users, Customer undertakes that:

9.2.1    each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential.  Any such password used by an Authorised User in accordance with this clause 10.2.1 shall be created in accordance with any policies or guidelines published by Cubic from time to time;

9.2.2    it shall maintain a written, up to date list of current Authorised Users and provide such list to Cubic within five (5) Business Days of its written request at any time or times;

9.2.3    it shall permit Cubic to audit the Services in order to establish the name and password of each Authorised User.  Such audit may be conducted no more than once per quarter, at Cubic’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business; and

9.2.4    if any of the audits referred to in clause 9.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Cubic’s other rights, Customer shall promptly disable such passwords and Cubic shall not issue any new passwords to any such individual.

9.3  Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

9.3.1    is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

9.3.2    facilitates illegal activity;

9.3.3    depicts sexually explicit images;

9.3.4    promotes unlawful violence;

9.3.5    is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

9.3.6    in a manner that is otherwise illegal or causes damage or injury to any person or property, and Cubic reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.

9.4  Customer shall not:

9.4.1    except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:

(a)    and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(b)    attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

9.4.2    access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

9.4.3    use the Services and/or Documentation to provide services to third parties; or

9.4.4    subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

9.4.5    attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 1.2; and

9.5  Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Cubic.

9.6  The rights provided under this clause 9. are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer.

10. Cubic’s Obligations

10.1  Cubic undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

10.2  Cubic shall use reasonable endeavours to provide the Operational Services in accordance with the service levels detailed in the appendix.

10.3  The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Cubic’s instructions, or modification or alteration of the Services by any party other than Cubic or its duly authorised contractors or agents.  If the Services do not conform with the foregoing undertaking, Cubic will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance.  Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.  Notwithstanding the foregoing, Cubic:

10.2.1    does not warrant that Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements; and

10.2.2    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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.4  The Agreement shall not prevent Cubic from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

11. Customer’s Obligations

Customer shall:

11.1  provide Cubic with:

11.1.1    all necessary co-operation and information in relation to the Agreement; and

11.1.2    all necessary access to such information as may be required by Cubic; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

11.2  comply with all applicable laws and regulations with respect to its activities under the Agreement;

11.3  carry out all of its other responsibilities set out in the Agreement in a timely and efficient manner.  In the event of any delays in Customer’s provision of such assistance as may be required by Cubic, Cubic may adjust any agreed timetable or delivery schedule as reasonably necessary;

11.4  ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

11.5  obtain and shall maintain all necessary licences, consents, and permissions necessary for Cubic, its contractors and agents to perform the obligations under the Agreement, including without limitation the Services;

11.6  ensure that Customer’s network and systems comply with the relevant specifications provided by Cubic from time to time; and

11.7  be solely responsible for procuring and maintaining Customer’s network connections and telecommunications links from its systems to Cubic’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.

12. Charges And Payment

12.1  Subject to the remainder of this clause 13, the Subscription Fees payable shall be calculated on the basis of the number of active Authorised Users and the storage used at the end of the Initial Subscription Term and each subsequent Renewal Period.

12.2  The Subscription Fees for the Initial Subscription Term and each Renewal Period shall be paid automatically from the Customer’s Chargify Account within one (1) calendar month of the expiry of the relevant Initial Subscription Term or Renewal Period, without set-off in respect of any of Cubic’s liability.

12.3  If payment cannot be made within the one (1) calendar month period set out at clause 12.2, Cubic may at its option either suspend the Services until payment is received, plus any interest charged by Cubic, or terminate the Services without further notice to Customer.

12.4  Cubic may change the Subscription Fees upon one (1) calendar month’s notice to Customer, with changes to be effective for the next Renewal Period following the end of the written notice period or on a later date specified in the written notice.  If Customer objects to a proposed change of Subscription Fees, Customer has the right to terminate the Agreement by notice to Cubic at info@gekko.email such termination to take effect on the date of the proposed change or ten (10) Business Days following the date the notice of termination is sent, whichever is the later.

12.5  If Customer fails to pay any sum due and payable under the Agreement by the due date, statutory interest from time to time shall accrue on the unpaid amount from the due date to the date of actual payment (after as well as before judgment).

13. Proprietary Rights

Customer acknowledges and agrees that Cubic and/or its licensors own all Intellectual Property Rights in the Services and the Documentation.  Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

14. Confidentiality

14.1  Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the Agreement.  A Party’s Confidential Information shall not be deemed to include information that:

14.1.1    is or becomes publicly known other than through any act or omission of the receiving Party;

14.1.2    was in the other Party’s lawful possession before the disclosure;

14.1.3    is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

14.1.4    is independently developed by the receiving Party, which independent development can be shown by written evidence; or

14.1.5    is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

14.2  Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

14.3  Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

14.4  Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

14.5  Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitutes Cubic’s Confidential Information.

14.6  Cubic acknowledges that the Customer Data is Customer’s Confidential Information.

14.7  This clause 14. shall survive termination of the Agreement, however arising.

14.8  Neither Party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

15. Indemnity

15.1  Except in relation to any amounts due pursuant to clause 16.3, Customer shall defend, indemnify and hold Cubic, its officers, directors and employees harmless against allegations, claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer’s or any Authorised User’s use of the Services and/or Documentation, including Intellectual Property Rights claims.

15.2  Customer shall defend, indemnify and hold Cubic, its officers, directors and employees harmless against allegations, claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim or allegation that Cubic’s use of the Customer Data infringes any Intellectual Property Right.

15.3  Cubic shall defend Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the date of the Agreement, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:

15.3.1    Cubic is given prompt notice of any such claim;

15.3.2    Customer provides reasonable co-operation to Cubic in the defence and settlement of such claim, at Cubic’s expense; and

15.3.3    Cubic is given sole authority to defend or settle the claim.

15.4  In the defence or settlement of any claim, Cubic may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two (2) Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.

15.5  In no event shall Cubic, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on:

15.5.1    a modification of the Services or Documentation by anyone other than Cubic; or

15.5.2    Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by Cubic; or

15.5.3    Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Cubic or any appropriate authority.

15.6  The foregoing and clause 17.4.3 state Customer’s sole and exclusive rights and remedies, and Cubic’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

16. Disclaimers

16.1  Customer acknowledges that the Services are not endorsed by any professional or regulatory bodies, nor are they designed to fulfil criteria required by any professional or regulatory bodies. Customer is responsible for ensuring it meets any requirements of any professional or regulatory body which it may be subject to.

16.2  Cubic does not warrant that the website and any Software used to provide the Services to Customer will be compatible with Customer’s computer and Customer is responsible for making all arrangements necessary for it to have access to the Services.

16.3  Cubic does not warrant that the Services will be available continuously and accordingly Customer’s access to the Services may from time to time be interrupted or contain errors.

16.4  Customer assumes sole responsibility for results obtained from its use of the Services by it and any Authorised User, and for conclusions drawn from such use.

16.5  Customer is responsible for all loss or damage caused by a Virus, distributed denial-of-service attack, or other technologically harmful material that may infect its computer equipment, computer programs, data or other proprietary material due to its use, or the use of any Authorised User, of the Services and/or the Software.

16.6  Any warranties given by Cubic shall be subject to Customer using the Services and/or Software in compliance with this Agreement, and Cubic shall not be liable under this Agreement for, or required to remedy, any problem arising from any defect or error wholly caused by third party software used in connection with the Services and/or Software.

17. Limitation Of Liability

17.1  This clause 17 sets out Cubic’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer:

17.1.1    arising under or in connection with the Agreement;

17.1.2    in respect of any use made by Customer of the Services and Documentation or any part of them; and

17.1.3    in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

17.2  Except as expressly and specifically provided in the Agreement:

17.2.1    Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use.  Cubic shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Cubic by Customer in connection with the Services, or any actions taken by Cubic at Customer’s direction;

17.2.2    all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and

17.2.3    the Services and the Documentation are provided to Customer on an “as is” basis.

17.3  Nothing in the Agreement excludes Cubic’s liability:

17.3.1    for death or personal injury caused by its negligence; or

17.3.2    for fraud or fraudulent misrepresentation.

17.4  Subject to clause 17.2 and clause 17.3:

17.4.1    Cubic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement;

17.4.2    to the extent any breach of this Agreement is caused by a Third Party Service, Cubic’s liability to Customer shall be limited to a proportion of such amount as Cubic actually recovers from the provider of such Third Party Service, where the proportion reflects Customer as a percentage of the total number of Cubic customers impacted by the Third Party Service; and

17.4.3    Cubic’s total aggregate liability in contract (including in respect of the indemnity at clause 15.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to fifteen thousand pounds sterling (£15,000).

18. Term And Termination

18.1  The Agreement shall, unless otherwise terminated as provided in this clause 18, commence on the Subscription Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods of one (1) calendar month (each a “Renewal Period”), unless:

18.1.1    either Party notifies the other party of termination, in writing, at least one (1) calendar month before the end of any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Renewal Period; or

18.1.2    otherwise terminated in accordance with the provisions of the Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

18.2  Cubic may terminate the Agreement where Customer fails to pay the Subscription Fees in accordance with clause 12.2.

18.3  Either Party may at any time, by notice to the other, terminate the Agreement as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.

18.4  If Customer would like to terminate the Agreement, Customer is required to:

18.4.1    e-mail Cubic at info@gekko.email stating that Customer wishes to terminate the Agreement; and

18.4.2    cancel any future payments of Subscription Fees made from Customer’s Chargify Account under the Agreement.  Cubic will cancel Customer’s registration with effect from the end of the Initial Subscription Term or next Renewal Period as relevant.

18.5  On termination of the Agreement for any reason:

18.5.1    all licences granted under the Agreement shall immediately terminate;

18.5.2    each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;

18.5.3    Cubic may destroy or otherwise dispose of any of the Customer Data in its possession unless Cubic receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data.  Cubic shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).  Customer shall pay all reasonable expenses incurred by Cubic in returning or disposing of Customer Data; and

18.5.4    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.

19. Force Majeure 

Cubic shall not be liable to Customer for any delay or non-performance of Cubic’s obligations under the Agreement arising from any cause or causes beyond Cubic’s reasonable control

20. Variation

No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

21. 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.

22. 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.

23. Severance

23.1  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.

23.2  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.

24. Entire Agreement

24.1  The Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

24.2  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.

25. Assignment

25.1  Customer shall not, without Cubic’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

25.2  Cubic 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 the Agreement.

26. 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).

27. Third Party Rights

The Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

28. Notices

28.1  Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in the Agreement, or such other address as may have been notified by that Party for such purposes, or sent by fax to the other Party’s fax number as set out in the Agreement.

28.2  A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery).  A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.  A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

29. Governing Law

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 law of England and Wales.

30. Jurisdiction

Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

APPENDIX

SERVICE LEVELS

1. Support Service Levels 

Cubic shall use reasonable endeavours to provide the Support Services to the Customer in accordance with section 1 of the Appendix.

1.1  In consideration for the payment by the Customer of the Fees as set out in the Agreement, Cubic shall provide Support Services in respect of the Software only, including any maintenance releases and new versions of the Software.

1.2  The Customer shall pay all costs (at Cubic’s then prevailing rates) and reasonable expenses incurred by the Customer for work carried out by Cubic in connection with any fault which is not covered by the Terms.

1.3  The Support Services shall comprise of a web-based support portal to register support tickets or a telephone help desk to provide first-line technical support to users of the Software.  The web-based support portal is available 24 hours and the telephone help desk is available 9:00am to 5:00pm Monday to Friday excluding public holidays or company closures as communicated to the Customer in advance.

1.4  It is not anticipated that any on-site support will be provided to the Customer.  If on-site support is requested by the Customer in any month, Cubic may provide this at its option at the then applicable charging rates of Cubic.  The Customer shall reimburse any travel or subsistence expenses incurred by Cubic where such expenses are incurred wholly and exclusively for the purpose of providing on-site support, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.

1.5  Cubic shall only provide Support Services for the most current release of the Software and any updates to that release.

1.6  The Support Services must be reported by the Customer to Cubic using the following procedure:

1.6.1    Issues are reported via our web-based ticketing system.

1.6.2    Tickets reported with priority 1 or 2 will trigger actions from the date and time of register within the normal business hours as outlined in Appendix 1.3, or from 9am the following normal business day.  The Customer must supply all relevant information to Cubic to enable it to provide the support for the problem being reported.

1.7  Cubic will use its reasonable endeavours, in coordination with the Customer, to assign the correct priority rating to any problem reported to Cubic by the Customer.  Cubic will then use its reasonable endeavours to perform the activities detailed below;

Priority Situation Action Timeframe
1 The Software cannot be used. Critical impact on Customer’s production environment.  Situation requires immediate resolution. Cubic shall immediately undertake all activities necessary to arrive at a solution and will continue doing this, until an acceptable solution or workaround is available, or until it is clear that further investigation possibly including third parties, is required. First response to report within two hours.  Effort to provide workaround within one day.  Commercially reasonable efforts to provide solution within three business days.
2 The Software is working, but under severe restrictions; a workaround is available, but situation requires short term solution. The Company shall immediately undertake all required actions to analyse the problem and to provide a solution (or recommend one, if the restricted operation is due to factors outside of the Company’s control). First response within one business day. Commercially reasonable efforts to provide solution within five business days.
3 The Software is operational under moderate restrictions. The Company undertakes actions towards resolution as soon as practical. Response, suggested course of resolution and expected time to completion of the solution will be communicated within 5 business days.

2. Hosting Services 

The Software is hosted on a Microsoft Azure platform that offers 99.9% uptime and whilst Cubic intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasions the Software may be unavailable to permit maintenance or other development activity to take place.

If for any reason Cubic has to interrupt the Software for longer periods than Cubic would normally expect, Cubic will use reasonable endeavours to publish in advance details of such activity via Email.

3. Backups

The Hosting Provider outlined in appendix section 2.0 will provide daily differential backups and weekly full backups on a rolling two week basis.