Service Agreement

In this Contract the following words have the following meanings:

1.1 “Affiliate” means any direct or indirect holding Company or Subsidiary Company of the relevant entity. A Company is a “Subsidiary” of another Company, if the latter company: (a) holds a majority of the voting rights in it; or (b) is a member of it and has the right to appoint or remove a majority of its board of directors; or (c) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it. “Company” includes any body corporate or any legal entity capable under law of making a contract.

1.2 “API” means the application programming interface described and defined in Schedule 4.

1.3 “API Licence” means the API licence described at Schedule 4.

1.4 “Client” means the ‘Client’ specified in the Order Form.

1.5 “Client Infrastructure” means the Client’s systems and technical infrastructure, including those systems that directly or indirectly interface and/or are interoperable with, and/or impact on, the Services, and which are not under Notify’s management and control and explicitly identified as Notify’s responsibility under this Contract, but excluding the Connectivity Infrastructure.

1.6 “Connectivity Infrastructure” means the internet, telecommunications links, broadband and/or third party software and systems which are neither owned or supplied by Notify or the Client and which connect the Services and/or the Notify Software to wide area networks.

1.7 “Contract” means these MSA Terms & Conditions, the Order Form, and the Schedules.

1.8 “Costs” means costs, liabilities, penalties, and charges.

1.9 “Deliverables” means the output/deliverables in respect of any Services, excluding any Materials.

1.10 “Effective Date” means the contract date specified in the Order Form.

1.11 “Fees” means the fees and charges specified in the Order Form and the SOW(s).

1.12 “Hardware” means any hardware to be supplied by Notify to the Client as set out in the Order Form.

1.13 “Hosted Services” means ‘Hosted Services’ as described in the Order Form.

1.14 “Intellectual Property Rights” means all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals.

1.15 “Law” means any applicable laws, regulations, regulatory constraints, obligations, proclamations, rules (including binding codes of practice and statement of principles incorporated and contained in such rules), or applicable judgment of a relevant court of law which is a binding precedent, in each case in force in any jurisdiction that is or may be applicable to this Contract.

1.16 “Licensing Purpose” means use in Health & Safety management and compliance for the benefit of the Client’s business only, as envisaged in Notify’s published marketing materials of the Hosted Services, excluding the Prohibited Purpose.

1.17 “Local” means installed on Client Infrastructure.

1.18 “Materials” means any tangible materials delivered by Notify to the Client under this Contract or any SOW(s).

1.19 “Notify” means Notify Technology Limited, a company registered in England and Wales with company number 10756960 of Cobalt Business Exchange, Cobalt Park Way, Newcastle Upon Tyne, NE28 9NZ.

1.20 “Notify-Distributed Service Providers” means the third party ‘Notify-Distributed Service Providers’ described at Schedule 3.

1.21 “Notify-Distributed Service Terms” means the additional terms applicable to the re-supply by Notify of services by Notify-Distributed Service Providers described at Schedule 3.

1.22 “Notify-Distributed Software Vendors” means the third party ‘Notify-Distributed Software Vendors’ described at Schedule 3.

1.23 “Notify-Distributed Software Licences” means software licensing terms in respect of the re-supply by Notify of software supplied by Notify-Distributed Software Vendors described at Schedule 3.

1.24 “Notify Software” means the Notify software as described in the Order Form.

1.25 “Open-Source Licence” means the open source software licence(s) described at Schedule 3.

1.26 “Open Source Software” means the open source software described at Schedule 3.

1.27 “Order Form” means the order form setting out the Services required by the Client, including any modification or customisation of the Notify Software.

1.28 “Prohibited Purpose” means use for the benefit of any entity other than the Client including without limitation (a) provision of any advisory services to any third party unconnected with the Health & Safety management and compliance of the Client’s business (b) reselling or re-providing the Hosted Services and/or Software to any other business whether on a bureau basis or otherwise.

1.29 “Services” means Set-up and Implementation Services, Notify Software, Hosted Services and additional professional services from time to time upon the completion of a Statement of Work.

1.30 “Set-up and Implementation Services” means ‘Set-up and Implementation Services’ as described in the Order Form.

1.31 “SLA” means the ‘Service Level Agreement’ set out at Schedule 1.

1.32 “Software” means the Notify Software, Open Source Software, and software supplied pursuant to Notify-Distributed Software Licences, including all new releases, new versions, updates, and modifications thereto.

1.33 “Statement of Work” or “SOW” means a contract for specified professional services that is made in accordance with Clause 5.3

1.34 “System Access” the local and wide area access to the Client Infrastructure as required by Notify in order to provide the Services pursuant to this Contract.

1.35 “Target Go-Live Date” means the target date (advised by Notify) on which the Client should put the Hosted Services into live and/or operational use.

1.36 “User Data” means any information, materials, or data: (a) uploaded, stored or created in or using the Notify Software by: (i) the Client or its users; or (ii) by Notify or a third party on the Client’s or its users’ instructions; and/or (b) provided to Notify by (or on behalf of) the Client or its users.

2.1 From the Target Go-Live Date Notify shall provide Hosted Services substantially in accordance with the SLA with reasonable skill and care in accordance with good industry practice, subject to the terms of this Contract and provided that Notify does not warrant that the Client’s use of Hosted Services will be uninterrupted or error free. Notify shall have no liability for breach of warranty or otherwise arising as a result of: (a) the failure of any services or software provided by Notify-Distributed Software Vendors or Notify-Distributed Service Providers respectively; (b) the failure by the Client to implement recommendations made by Notify in respect of solutions to faults previously advised by or on behalf of Notify and (c) any repair or modification of the Software by any person other than Notify or its authorised sub-contractors. Notify shall use its reasonable endeavours to meet the timescales specified in the SLA. Resolution times are targets rather than guarantees.

2.2 Subject to the Client complying at all times with the terms of this Contract, and subject to clause 2.6, Notify grants to the Client a non-exclusive non-transferable, non-sub-licensable licence for the duration of this Contract to: (a) permit its authorised users to use the Notify Software via the Hosted Services for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order Form; (b) permit its authorised users to install and use any Local Notify Software for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order Form; and (c) use the Materials and Deliverables for the Licensing Purpose.

2.3 Notify shall not be responsible for any failure to provide Hosted Services as a result of a failure by the Client to comply with its responsibilities under this Contract and: (a) errors in or corruption of the Client Infrastructure, Connectivity Infrastructure, and/or the Client’s data; and/or (b) the occurrence of a Suspension Event.

2.4 Notify reserves the right at its sole discretion to suspend Hosted Services in the event of (each of which shall be a “Suspension Event“): (a) scheduled maintenance services (for which Notify shall give to the Client as much notice as is reasonably practicable in the circumstances); (b) a material breach by the Client of the terms of this Contract (including a failure to pay the Fees in accordance with Clause 8); (c) where ongoing use by the Client of Hosted Services has, in Notify’s reasonable opinion, the prospect of damaging Hosted Services or degrading performance, whether due to failures in or problems with the Client Infrastructure, failures in or problems with the Connectivity Infrastructure, or the occurrence of an Event of Force Majeure.

2.5 In the event of a failure by Notify to provide Hosted Services in accordance with this Contract, Notify will, at its expense, use all reasonable commercial efforts to correct any such failure(s) promptly (which may include the provision of a temporary workaround) in accordance with the SLA. Notify’s provision of corrective services in accordance with this Clause 2.5 shall constitute the Client’s exclusive remedy for any breach of Clause 2.1. Nothing in this Clause 2.5 purports to limit Notify’s liability for any failure of Notify to comply with this Clause 2.5 (for which the provisions of Clause 14 shall apply).

2.6 Client’s authorised users shall include only the Client’s employees and directors. Notwithstanding the foregoing, if expressly permitted in the licensing parameters set out in the Order Form, the Client’s authorised users may also include (to the extent indicated on the Order Form) Client’s agents or advisors, Client’s Affiliates and/or sub-contractors, in each case who have a need to use the Software and/or Hosted Services for the Licensing Purpose. Where such permissions are given, the details of each third party user shall be expressly communicated to Notify by Client and clause 4.6 shall apply.

3.1 Any Hardware supplied by Notify shall be supplied with the manufacturing warranty only. Notify’s sole liability to the Customer in respect of any such Hardware shall be an obligation to enforce, at the Client’s own expense, any rights that Notify may have against the supplier of such Hardware.

4.1 The Client shall: (a) undertake all reasonable enquiries to satisfy itself that the Services are suitable for its needs before entering into this Contract; (b) adopt such processes and make such changes to its working practices as are necessary to make effective use of the Services; (c) have in place appropriate Client Infrastructure and Connectivity Infrastructure necessary for the provision of Services; (d) maintain and upgrade the Client Infrastructure and Connectivity Infrastructure in accordance with good industry practice, Notify’s reasonable instructions, and any minimum environment recommendations published as part of Software specifications/guidelines (including Notify guidance as to supported internet browsers); (e) carry out all of its responsibilities set out in this Contract in a timely and efficient manner and, in particular, not act (or fail to act) in a manner that will delay or otherwise adversely impact on Notify (or its subcontractors) performance of Services; (f) provide Notify with all necessary information, co-operation, and assistance as may be required by Notify in order to provide Services; (g) comply with the Law with respect to its activities under this Contract; (h) provide Notify with such technical support, information, and access to systems and/or data as Notify reasonably requires in order to maintain System Access for the duration of this Contract; (i) maintain its own back-up of User Data in accordance with good industry practice; (j) ensure that any data (including User Data) migrated to Notify as part of any data migration project is appropriately cleansed and is free from corruption or material errors; (k) keep confidential the Notify Software, the Deliverables and the Materials and effect and maintain adequate security measures to safeguard the Notify Software, Deliverables and Materials from access or use by any unauthorised person and in particular limit access to the same to those employees, agents and sub-contractors who either have a need to know or who are engaged in the use of the Notify Software, Deliverables and Materials in accordance with the terms of this Contract.

4.2 The Client shall not, and shall not permit any third party to, copy, adapt, reverse engineer, decompile disassemble, or modify the Software (or attempt to do the same), save to the extent permitted by Law.

4.3 The Client recognises that the availability of the Hosted Services is, in part, dependent on the stability of the Connectivity Infrastructure, and that changes to the Connectivity Infrastructure may result in the loss of availability of (or the material degradation of) the Hosted Services. The Client shall not make changes to those elements of the Connectivity Infrastructure that are within its control, without the authorisation of Notify. The parties agree that changes to Connectivity Infrastructure that are outside of both parties control (and the consequences of such changes) are not the responsibility of either party; save that both parties shall use their reasonable endeavours to mitigate the adverse impact of such changes on the Hosted Services.

4.4 The Client shall permit Notify, on reasonable notice, to test the Client Infrastructure. In the event that Notify reasonably considers that the Client Infrastructure is inadequate and/or is (or may be) responsible for performance or functionality failures or degradation, the Client shall make such changes to Client Infrastructure (whether configuration or upgrades) as Notify may reasonably recommend.

4.5 The Client may use the Hosted Services and Software only for the advertised purpose. The Software must not be used for any unlawful or immoral purpose including in relation to adult content or content that may contain harmful programs designed to adversely affect the operation of any computer software or hardware.

4.6 The Client shall be responsible to Notify for any third party use of the Software and/or Hosted Services pursuant to Clause 2.6, as if such use were by the Client itself. Client shall notify the use restrictions under this Contract to each relevant third party user and shall ensure that all such third parties comply with the terms of this Contract. Each third party user shall count towards the numerical restrictions on users described in the licensing parameters set out in the Order Form.

5.1 Services will be provided pursuant to this Contract if and to the extent that such Services are specified in the Order Form.

5.2 If Notify’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees: (a) Notify shall not be liable for any costs, charges or losses incurred by the Client in respect of such failure to perform; and (b) Notify shall be provided with additional time to perform its obligations, at least equal to the length of the delay caused by the Client.

5.3 This Contract also operates as a framework under which Services may be provided if the parties agree any SOW(s) by completing a SOW pro forma, as set out at Schedule 2. A SOW is deemed completed and binding on the parties if: (a) it is signed by both parties; or (b) it is raised by Notify in accordance with Clause 5.4 below. Each completed SOW is a separate contract for Services. The completed SOW incorporates all the terms of this Contract that directly or indirectly relate to the SOW.

5.4 In the event that Services are undertaken by Notify on the written request of the Client and it is not reasonably practicable to populate and execute a SOW in respect of such services prior to such services commencing, as soon as reasonably practicable thereafter Notify shall raise a retrospective SOW capturing the Services ordered by the Client, with the fees calculated either on a time and materials basis or as a fixed price as specified in a SOW. Such a SOW will not require the Client’s signature to be binding on the parties.

5.5 Notify shall provide Services using reasonable care and skill and in accordance with good industry practice. Both parties shall use their reasonable endeavours to meet the timescales specified in the SOW(s). Notify shall not be responsible for any failure to achieve deadlines or milestones in the SOW(s) to the extent that the failure has been caused by any delay or default on the part of the Client. Time shall not be of the essence in relation to Notify’s performance.

6.1 This clause shall apply only if the Set-Up and Implementation Services reference a Notify document under which Notify has agreed with the Client to execute software development services to enhance the Notify Software and/or Hosted Services and such document articulates acceptance criteria for such services.

6.2 The parties shall mutually agree in writing the acceptance criteria that will be used to determine whether the Software is Accepted or Rejected (“Acceptance Criteria“), and in the absence of such agreement the Acceptance Criteria shall be such criteria recommended by Notify that demonstrate that the Software complies with its specification(s).

6.3 The Client shall undertake and complete user acceptance testing in a test environment in accordance with good industry practice and Notify’s reasonable recommendations promptly (“Tests“).

6.4 If the Software fails the Tests: (a) Notify shall promptly, and in any event within fourteen (14) days, endeavour to remedy such failure (noting that Notify will have limited control over such Software that is supplied by third parties) and resubmit the Software for a second cycle of Tests in accordance with clause 6.3; or (b) the parties may agree to vary some or all of the Acceptance Criteria in relation to the Software and following which Notify shall promptly submit the Software for a second cycle of Tests in accordance with clause 6.3.

6.5 If the Software fails a second cycle of Tests, the parties agree that the cycle at clause 6.4 shall be repeated.

6.6 If the Software fails a third cycle of Tests, within thirty (30) days of such failure, the Client shall be entitled to Reject the Software, which in respect of Tests immediately following (or part of) the Set-Up and Implementation Services, will entitle the Client to terminate this Contract by giving to Notify not less than ten (10) days prior written notice, whereupon the Client shall be entitled to receive a refund of all pre-paid Fees under this Contract that relate to Software and/or Set-Up and Implementation Services.

6.7 Software shall be deemed accepted if: (a) the Client signs an acceptance certificate; (b) the Client does not exercise its rejection rights in accordance with clause 6.6; (c) the Client puts the Software into live or operational use.

6.8 The Client’s rights at clause 6.6 shall be its exclusive remedies in respect of rejection. In no circumstances shall the Client be entitled to compensation and/or damages (with the exception of the refund(s) set out at clause 6.6 (a)).

6.9 The Client shall install and/or implement new releases and/or new versions of Software promptly.

7.1 Each party shall appoint the personnel as specified in the Order Form (“Key Personnel”). Each party shall ensure that its Key Personnel shall be contactable using the contact details specified in the Order Form (as updated from time to time). Each party shall inform the other promptly if any of its Key Personnel resigns or for any other reason ceases to work under this Contract.

7.2 Each party shall use their reasonable endeavours to maintain the continuity of their Key Personnel in respect of the management of this Contract, and if such Key Personnel become unavailable, each party shall promptly replace such individuals and ensure that any disruption to the Contract is minimised.

8.1 The Client shall pay: (a) Fees as and when they fall due for payment, as specified in the Order Form; and (b) Fees for Services in the manner specified in the SOW(s) or otherwise fixed as specified under a SOW.

8.2 The Client shall pay any expenses reasonably incurred by Notify in performing its duties under this Contract, including travel, accommodation, subsistence and telecommunication expenses.

8.3 Notify shall be entitled to raise invoices for Fees and charges as and when they fall due for payment under Clause 8.1.

8.4 The Client shall pay Notify’s invoices either: (a) within seven (7) days of the date of the invoice; (b) by the date specified on the invoice; or (c) by direct debit or standing order (if applicable; and if specified in the Order Form).

8.5 The Client may not withhold payment of any amount due to Notify because of any set-off, counterclaim, abatement, or other similar deduction.

8.6 All fees payable by the Client to Notify under this Contract are payable in Pounds Sterling (unless another currency is specified in the Order Form) and are exclusive of any tax, levy, currency conversion charge or similar governmental charges, including value added or sales tax, that may be assessed by any jurisdiction, except for income, net worth or franchise taxes on Notify.

8.7 If any sum payable under this Contract is not paid ten (10) days after the due date for payment then (without prejudice to Notify’s other rights and remedies) (a) Notify reserves the right to charge interest on that sum on a daily compounded basis (before as well as after any judgment) at the annual rate of ten per cent measured from the due date to the date of payment, provided that at no time shall the Client be required to pay interest at an effective rate higher than legally permissible; and (b) Notify reserves the right to disable access to the Services until such outstanding fees (and interest, if applicable) are paid in full.

8.8 All Fees shall increase on each anniversary of the Target Go-Live Date by an amount, as notified by Notify, that does not exceed the rate of change in the Retail Price Index (for all items) as published by the Office for National Statistics plus two per cent, measured between the date of review and the last review date (or in the event of the first review date, the Target Go-Live Date) (“Indexed Increase“).

8.9 The parties acknowledge that Notify’s Fees are in part dependent on the costs imposed on it by third party technology and/or infrastructure providers which are outside of its control. As such, Notify shall be entitled to increase the Fees at any time by giving the Client not less than thirty (30) days’ written notice if any Notify-Distributed Software Vendor and/or Notify-Distributed Service Provider has increased its fees or charges in a manner that increases the costs imposed on Notify under this Contract, provided that such increase shall be limited to the additional cost imposed on Notify as may be apportioned to this Contract. Both parties will work collaboratively to mitigate the impact of any such third party costs and will endeavour to keep such increases to a minimum.

8.10 After the expiry of the Minimum Term, Notify shall be entitled by giving the Client not less than ninety (90) days’ written notice prior to an anniversary of the Target Go-Live Date (“Anniversary Date“) to increase any or all Fees with effect from the Anniversary Date by an amount that exceeds an Indexed Increase (as determined by Notify in its sole discretion) (“General Increase“), provided that if the Client objects to a General Increase it shall be entitled to terminate this Contract with effect from the Anniversary Date by giving to Notify not less than sixty (60) days’ written notice prior to the Anniversary Date.

8.11 Notify shall be entitled to increase the Fees if, during any month, the Client’s use of the Hosted Services exceeds the relevant data storage maximums specified at www.notifytechnology.com/fair-use. In such situation the Client shall pay Notify’s then current excess data storage fees as indicated at www.notifytechnology.com/fair-use.

9.1 Title to the Materials is and shall at times remain with Notify unless otherwise specified in the Order Form or an SOW. Notify and its licensors owns and shall continue to own all Intellectual Property Rights in the Notify Software and any Deliverables including any updates, enhancements and/or fixes to the same. Full and unencumbered title (with full title guarantee) in Deliverables shall vest in Notify absolutely upon creation. The Client undertakes at the request of Notify at all times from the date of this Contract to, and to procure that any and all of its sub-contractors and any third party involved in any SOW(s) shall, do all acts and execute all documents, papers, forms and authorisations and to dispose to or swear all declarations or oaths reasonably necessary and/or desirable to give effect to the provisions of this Clause 9.1.

10.1 This Contract. This Contract is formed (and becomes legally binding) when the parties complete and sign the Order Form. This Contract shall commence on the Effective Date and shall continue unless and until terminated by either party in accordance with this Clause 10.

(i) Either party shall be entitled to terminate this Contract on expiry of the Minimum Term specified in the Order Form and each subsequent anniversary of the Target Go-Live Date by giving to the other party not less than ninety (90) days’ prior written notice.

(ii) Either party shall be entitled to terminate this Contract immediately if the other party commits any material breach of this Contract and fails to remedy that breach within thirty (30) days of written notice of that breach (the 30 day period only applies where a breach is capable of remedy – if it is incapable of remedy, the Contract may be terminated by written notice immediately).

10.2 SOW(s). The SOW(s) shall commence in accordance with Clause 5.3 and shall terminate on completion of the Services or in accordance with this Clause 10.2.

(i) Either party shall be entitled to terminate any SOW(s) immediately by giving to the other party not less than ninety (90) days’ prior written notice.

(ii) Either party shall be entitled to terminate any SOW(s) immediately by giving written notice to the other party if that other party commits any material breach of the applicable SOW that is incapable of remedy (if the breach is capable of remedy, this Contract may be terminated immediately if the other party fails to remedy that breach within thirty (30) days of written notice).

10.3 Insolvency. Either party shall be entitled to terminate either this Contract and/or any SOW(s) immediately by giving written notice to the other party if that other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.

11.1 On termination of this Contract or any SOW(s) howsoever caused: (a) the rights and duties created by Clauses 8, 9, 12, 13, 14, 17, 18 and 19. shall survive; (b) the rights of either party which arose on or before termination shall be unaffected.

11.2 On termination of this Contract howsoever caused: (a) the SOW(s) shall be unaffected; (b) each party shall return, in good condition, the tangible property of the other party (if any) that was made available under this Contract in accordance with that other party’s reasonable instructions; (c) all licences granted shall terminate; (d) the parties shall cooperate as regards the migration of User Data to the Client, subject to any data retention that is required by Law; (e) the Client shall immediately pay to Notify any sums due under the Contract.

11.3 On termination of any SOW(s) howsoever caused: (a) other SOW(s) and the Contract shall be unaffected; and (b) each party shall return, in good condition, the tangible property of the other party (if any) that was made available under the SOW(s) in accordance with that other party’s reasonable instructions. In the event that termination of the SOW(s) precedes completion of the Services: (i) Notify shall make such partial delivery to the Client of the Materials and Deliverables as is reasonably practicable, such Materials and Deliverables to be provided on an “AS IS” basis; and (ii) if the parties had agreed to a fixed price under the SOW(s), Notify may (at its sole discretion) reduce the fixed price by an amount that reasonably reflects both the value of the Services that have been provided under the SOW(s) and the cost to Notify of providing such Services.

12.1 Each party that receives (“Receiving Party“) non-public business or financial information (“Confidential Information“) from the other (or the other’s Affiliates) (“Disclosing Party“), whether before or after the date of this Contract shall:

(i) keep the Confidential Information confidential;

(ii) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 12.2, or 12.3; and

(iii) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract (“Permitted Purpose“).

12.2 The Receiving Party may disclose Confidential Information to its own, or any of its Affiliates, officers, directors, employees, agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party“), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 12 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 12.

12.3 If required by Law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.

12.4 The parties agree that any breach of the restrictions contained in this Clause 12 may cause irreparable harm to the innocent party, whereupon the innocent party shall be entitled to seek injunctive relief.

13.1 Subject to clause 13.6, Notify shall not own (or claim ownership rights in respect of) User Data.

13.2 The Client is responsible for the accuracy, reliability, lawfulness, and integrity of all User Data. The Client warrants that User Data shall not be defamatory or offensive and that it, and its users, have all consents, licenses and permissions (including the consent of any Data Subjects) in respect of User Data as are required for Client (and its users) to lawfully upload, store, distribute, publish, share and/or Process the User Data (as applicable): (a) in/through the Notify Software; and/or (b) to/with other Client users or any third parties who are authorised by the Client or by Law to view/access the User Data. The Client shall indemnify and hold harmless Notify for Costs arising from a breach of this Clause 13.2, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Client of this Clause 13.2.

13.3 For the purposes of this Clause 13, “Data Protection Legislation” means the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and any related act or regulation in the UK, including statutory modification or re-enactment of it, and “Data Controller“, “Data Subject“, “Personal Data“, “Data Processor“, and “Process” shall have the meaning specified in the Data Protection Legislation. “Applicable Laws” means (for so long as and to the extent that they apply to Notify) the law of the European Union, the law of any member state of the European Union and/or the Data Protection Legislation.

13.4 In relation to the Processing of any Personal Data in the User Data, the parties agree that the Client and/or its user(s) is/are the Data Controller and Notify is the Data Processor. Schedule 2 sets out the subject matter, duration, nature and purpose of the processing by Notify, as well as the types and categories of Personal Data and the obligations and rights of the Client. Notify shall in respect of such Personal Data:

(i) process that Personal Data only on the documented written instructions of the Client unless Notify is required by Applicable Laws to otherwise process that Personal Data. Where Notify is relying on Applicable Laws as the basis for processing Personal Data, Notify shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Notify from notifying the Client;

(ii) 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 Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(iii) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(iv) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the Client has provided appropriate safeguards in relation to the transfer;

(v) 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;

(vi) notify the Client without undue delay on becoming aware of a Personal Data breach;

(vii) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Applicable Laws to store the Personal Data; and

(viii) maintain complete and accurate records and information to demonstrate its compliance with this Clause 13 and allow for audits by the Client on reasonable notice and immediately inform the Client if, in the opinion of Notify, an instruction infringes the Data Protection Legislation.

13.5 The Client consents to Notify appointing Amazon Web Services as a third-party processor of Personal Data under this agreement. Notify confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third-party’s standard terms of business. As between Notify and the Client, Notify shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 13.5. Notify shall inform the Client sixty (60) days prior to any proposed change or addition to the appointed third-party processor. If the Client objects to such changes or additions it may terminate this Contract.

13.6 During and after the term, Notify may access, view and manipulate User Data and use the User Data for the purpose of providing other clients of Notify or any third parties, whether on commercial or non-commercial terms, with anonymised User Data for the purpose of creation by Notify or by those third party recipients of reports, benchmarking information and other analysis based on the anonymised User Data. References to User Data in this clause include any Intellectual Property Rights in or related to the User Data.

14.1 Neither party shall exclude or limit its liability for:

(i) death or personal injury caused by its negligence;

(ii) fraudulent misrepresentation; and/or

(iii) breach of Clause 12.

14.2 Notify shall not be liable for loss of profit, loss of revenue, loss of anticipated savings, loss of goods, loss of contract or loss of goodwill.

14.3 The Client agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).

14.4 Notify’s Contractual Liability to the Client shall not exceed the greater of (a) £100 or (b) fees paid (plus any unpaid fees that are payable) under the Contract (but not any SOW) relating to the 12 month period prior to the date in which the claim (or series of connected claims) arose. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not:

(i) unlimited by virtue of Clause 14.1; or

(ii) excluded pursuant to Clauses 14.2 and 14.3.

14.5 Notify’s SOW Liability to the Client shall not exceed the fees paid (plus any unpaid fees that are payable) under the SOW under which the claim (or series of connected claims) arose. “SOW Liability” means liability howsoever arising under or in relation to the subject matter of the SOW under which the claim (or series of connected claims) arose that is not: (a) unlimited by virtue of Clause 14.1; (b) excluded pursuant to Clauses 14.2, 14.3, and 14.4.

14.6 Except as expressly provided in this Contract, Notify hereby excludes any implied condition or warranty concerning the merchantability, quality or fitness for purpose of its services, whether such condition or warranty is implied by statute or common law.

14.7 Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by any circumstances beyond its reasonable control. Without limitation, the following shall be regarded as causes beyond either party’s reasonable control: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) import or export regulations or embargoes; (e) any change in any Law(s) that has an impact on the parties’ rights and/or responsibilities under this Contract; (f) any breach by a third party of the Computer Misuse Act 1990 or the Communications Act 2003 that has the object or effect of directly or indirectly interfering with or damaging the Client Infrastructure, and/or Notify’s hardware, software and/or network infrastructure; and (g) any mitigation arising in accordance with Schedule 4 paragraph ‘d’; each an “Event of Force Majeure“.

15.1 The Client shall not assign or otherwise transfer this Contract or any of its rights and duties under this Contract without the prior written consent of Notify, such consent not to be unreasonably withheld or delayed.

15.2 Notify may assign or otherwise transfer this Contract or any of its rights and duties under this Contract without the consent of the Client. In such circumstances Notify will use reasonable endeavours to inform the Client promptly following such assignment or transfer.

15.3 Notify may sub-contract the performance of any of its duties. Notify shall be entitled, at its sole discretion, to replace such service providers from time to time without notice to the Client.

15.4 The rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.

16.1 Subject to Clause 16.4, no changes to this Contract or the SOW(s) shall be valid unless made in writing and signed by the authorised representatives of both parties.

16.2 Either party shall be entitled from time to time to request a change to the scope of the Services (“Change“). Neither party shall be entitled to charge for considering and/or negotiating a Change.

16.3 A Change will be effective when it is documented in writing in a standard Notify change control form.

16.4 Notify reserves the right to make changes to Hosted Services from time to time. If such a change is likely to remove material functionality of the Hosted Service: (a) Notify shall give the Client not less than sixty (60) days’ prior written notice of such change (a “Change Notice“); and (b) the Client shall be entitled by giving Notify not less than thirty (30) days’ prior written notice prior to the Change Notice taking effect to terminate this Contract. In the event that the Client has prepaid Fees covering a period that is shortened by termination by the Client in accordance with this Clause 16.4, Notify shall refund to the Client a proportion of the prepaid Fees in respect of such period, pro rated on a daily basis. This Clause 16.4 is without prejudice to Notify’s rights under the SLA.

17.1 For the duration of this Contract and a period of twelve (12) months thereafter, the Client shall not, and shall ensure its Affiliates shall not, without the prior written consent of the other, solicit, entice away, and/or actively initiate recruitment (whether directly or indirectly) of any employee of Notify who performed (or is performing) a material function for the other party (excluding administrative, secretarial, or other back-office functions).

17.2 If the Client breaches Clause 17.1, it shall pay Notify an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to Notify and cost of recruiting and training a replacement. The parties agree that this sum is a genuine pre-estimate of the loss likely to be suffered by Notify in these circumstances and not a penalty.

18.1 The parties shall attempt to resolve any dispute arising out of or relating to this Contract (including any dispute relating to any non-contractual obligations arising out of or in connection with it) (the “Dispute”) through discussions between senior representatives.

18.2 Where the Dispute is not resolved within forty (40) days of the start of discussions in accordance with Clause 18.1 above, the parties shall attempt to resolve the Dispute in good faith through an Alternative Dispute Resolution (“ADR”) procedure as recommended by the Centre for Effective Dispute Resolution.

18.3 If the Dispute has not been resolved by an ADR procedure within forty (40) days of the initiation of that procedure, or if either of Notify or the Client will not participate in an ADR procedure, either of the parties shall be entitled to refer the Dispute to the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.

18.4 Clauses 18.1 to 18.3 above shall not restrict either party’s ability to commence court proceedings in respect of any:

(i) matter relating to its Confidential Information or Intellectual Property Rights; and/or

(ii) unpaid invoice.

19.1 Publicity. The Client hereby irrevocably consents to Notify referring to the Client as a client of Notify in its sales and marketing literature (including its website).

19.2 Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.

19.3 Relationship. Nothing in this Contract shall render the Client a partner or an agent of Notify and the Client shall not purport to undertake any obligation on Notify’s behalf nor expose Notify to any liability nor pledge or purport to pledge Notify’s credit.

19.4 Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.

19.5 Severance. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.

19.6 No Waiver. No delay, neglect or forbearance by Notify in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.

19.7 No Bribery. Each party warrants to the other that it: (a) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (b) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.

19.8 Counterparts. This Contract may be executed in any number of counterparts and by each of the parties on separate counterparts each of which when executed and delivered shall be deemed to be an original, but all the counterparts together shall constitute one and the same agreement.

19.9 Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent to the address of the recipient set out in this Contract or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post 48 hours after delivery to the courier or posting (as the case may be), or if by email immediately.

19.10 Interpretation. In this Contract: (a) any reference to a Clause means a reference to a Clause of this Contract unless the context requires otherwise; (b) unless the context otherwise requires, the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them; (c) the headings are for ease of reference only and shall not affect the construction or interpretation of the Contract; and (d) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.

19.11 Hierarchy. To the extent there is any inconsistency between the provisions of these MSA Terms & Conditions, the Order Form, the Schedules, the SOW(s), any documents incorporated into this Contract, and any documents incorporated into the SOW(s) the following order of precedence shall apply: (a) first these MSA Terms & Conditions; (b) second the Schedules; (c) third the Order Form; (d) fourth the SOW(s); (e) fifth documents incorporated into the SOW(s); and (f) sixth documents incorporated into this Contract.

19.12 Law. This Contract is governed by the laws of England.

AVAILABILITY

1. Notify shall use its reasonable endeavours to make the Hosted Services available on a 99.9% basis, measured each calendar month. This target uptime excludes downtime during maintenance as set out in paragraph 2 below.

MAINTENANCE

2. Notify shall from time to time provide and install: (a) minor improvements, updates, enhancements, error corrections, upgrade scripts, and changes to Notify Software (each containing updates to the help files and documentation) (“Maintenance Releases“); and (b) new releases, new versions, updates, and modifications to Notify Software that do not constitute New Products (as generally available in accordance with Notify’s timetable for releasing new versions as amended from time to time and available on request including updates to the help files and documentation) (“New Version“).

3. Nothing in this Contract shall entitle the Client to any new version of the products which from time to time is publicly marketed and offered for purchase by Notify in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product (“New Product“) and/or not the standard offering from Notify at the Effective Date.

SUPPORT

4. In response to errors in the Hosted Services and/or Notify Software reported to Notify’s helpdesk in accordance with paragraphs 11 to 13 (below), Notify may provide a Solution on a timescale that Notify in its sole discretion considers to be reasonable having regard to the nature of the error. Solutions will typically be provided at the next applicable release cycle, provided the errors reported are not Out of Scope. Whilst Notify will attempt to respond to error reports promptly, it does not promise or guarantee any specific response time.

5. “Solutions” are fixes or workarounds that eliminate an error or reduce its effects, which are provided remotely and which may (or may not) include Notify providing Maintenance.

6. “Out of Scope” means errors that fall outside the scope of Notify’s responsibilities under this Contract and/or result directly or indirectly from the Client’s: (a) misuse or improper use of the Hosted Services and/or Notify Software; and/or (b) combination, merger, or use of the Hosted Services and/or Notify Software with any hardware or software outside the Client Infrastructure and/or Connectivity Infrastructure.

7. The parties may agree that Notify will provide certain support and maintenance services in respect of Out of Scope errors as Services under an SOW.

8. Notify may refuse or charge for support in relation to any Client which pays no subscription fees or has only free of charge access to Notify Software and/or Hosted Services.

ENVIRONMENT

9. The Client is responsible for procuring and maintaining the Client Infrastructure and Connectivity Infrastructure.

10. Maintenance Releases and New Versions may require enhancements to the Client Infrastructure and Connectivity Infrastructure. Notify will advise the Client if such enhancements are required. The Client is responsible for procuring and implementing such enhancements. The parties may agree that Notify will provide assistance with implementation as Services under an SOW.

CONTACTING NOTIFY & BUSINESS PARTNERS

11. Notify’s support operates during the “Support Hours“: from 09:00 – 17:00, Monday – Friday, excluding public holidays in England).

12. The Client may only contact Notify in respect of support queries through Notify’s online helpdesk, via up to two support contact staff nominated by Client.

13. References to hours in this Service Level Agreement do not include hours outside the Support Hours.

14. Where a Notify business partner (“Partner“) introduced the Client to Notify and has undertaken to provide First Line Support to the Client, the Client shall contact the Partner instead of Notify in relation to First Line Support.

15. “First Line Support” means first line support including customer set up and onboarding, new user training and assisting users from time to time with ordinary use and configuration of products in relation to documented functionality but excluding Second Line Support.

16. “Second Line Support” means second line support provided by Notify or its appointees including assistance with any undocumented features and/or errors in Notify products.

SERVICE CREDITS

17. If Notify fails to meet the target uptime set out within clause 1 during any given month, the Client shall become entitled to the applicable service credit (“Service Credit“) specified in the table below, provided that the failure to meet the target uptime:

a. is not Out of Scope;

b. is not caused by an Event of Force Majeure;

c. is not caused by factors outside of the reasonable control of Notify; and

d. is notified to Notify within 28 days from the time the Client becomes eligible to receive the Service Credit.

In the table above, Service Credit takes effect as the addition of the stated number of days of service to the end of the Term.

18. Failure by the Client to comply with the notification requirement at clause 17(c) above will result in the Client’s right to receive the relevant service credit being irrevocably waived.

19. The aggregate number of Service Credits that may be issued in a single three (3) month period shall not exceed fifteen (15) days.

20. The parties agree that each Service Credit is proportionate and that the provision of a Service Credit shall be the Client’s exclusive remedy for Notify’s failure to meet the target uptime set out within clause 1 of this schedule.

21. Service Credits may not be exchanged for, or converted to, monetary amounts.

22. Service Credits do not apply in relation to any Client which pays no subscription fees or has only free of charge access to Notify Software and/or Hosted Services.

This Schedule 2 includes certain details of the processing of Personal Data as required by Article 28(3) of the GDPR.

1. SUBJECT MATTER AND DURATION OF THE PROCESSING OF PERSONAL DATA

The subject matter and duration of the processing of Personal Data is set out in the Contract.

2. THE NATURE AND PURPOSE OF THE PROCESSING OF PERSONAL DATA

Such processing, in accordance with the Client’s instructions, as is necessary to provide the services pursuant to the Contract, which may include: the collection of data; recording of data; organisation of data; storage of data; alteration of data; retrieval of data; consultation with regard to data; use of data; disclosure of data to permitted third parties; combining data; and/or erasure of data.

3. THE TYPES OF CLIENT PERSONAL DATA TO BE PROCESSED

3.1 Personal Data

The Client may submit Personal Data in the course of using the Services, the extent of which is determined and controlled by the Client in its sole discretion, which may include, but is not limited to Personal Data relating to the following: email addresses of users of the Notify Software, incident, audit and risk assessment related Personal Data contained, for example, in emails between users.

4. THE CATEGORIES OF DATA SUBJECT TO WHOM THE CLIENT PERSONAL DATA RELATES

The Client may submit Personal Data to Notify, the extent of which is determined and controlled by the Client in its discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: the Client’s customers, employees, business partners, suppliers and subcontractors.

5. THE OBLIGATIONS AND RIGHTS OF THE CLIENT

The obligations and rights of the Client are set out in the Contract.

1. INTRODUCTION

1.1 The provisions of this Schedule apply to the extent identified in the Order Form.

2. Notify Distributed Software and Services

2.1 In this paragraph, the following words have the following meanings:

a. “Notify-Distributed Service Providers” means the third party ‘Notify-Distributed Service Providers’ identified at https://www.notifytechnology.com/third-party-providers/

b. “Notify-Distributed Service Terms” means the additional terms applicable to the re-supply by Notify of services by Notify-Distributed Service Providers identified at https://www.notifytechnology.com/third-party-providers/

c. “Notify-Distributed Software Vendors” means the third party ‘Notify-Distributed Software Vendors’ identified at https://www.notifytechnology.com/third-party-providers/

d. “Notify-Distributed Software Licences” means software licensing terms in respect of the re-supply by Notify of software supplied by Notify-Distributed Software Vendors identified at https://www.notifytechnology.com/third-party-providers/.

2.2 The Client acknowledges that: 2.2a. in order to make use of the Hosted Services it must agree to Notify-Distributed Software Licences and Notify-Distributed Service Terms; and 2.2b. any termination of the Notify-Distributed Software Licence(s) and/or Notify-Distributed Service Terms may prevent it from making substantial use of the Hosted Services, but shall not entitle it to terminate this Contract and/or receive any refund under this Contract.

2.3 The Client agrees that it will abide by the terms and conditions of Notify-Distributed Software Licences and Notify-Distributed Service Terms.

2.4 The Client shall indemnify and hold harmless Notify for all Costs arising from a breach of this paragraph 2, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Client of this paragraph 2.

3. Open Source Software

3.1 In this paragraph, the following words have the following meanings:

a. “Open Source Licence” means a licence in respect of the Open Source Software as identified at https://www.notifytechnology.com/third-party-providers/

b. “Open Source Software” means the open source software as identified at https://www.notifytechnology.com/third-party-providers/, including all new releases, new versions, updates and modifications thereto.

3.2 The Client acknowledges that: 3.2a. in order to make use of the Hosted Services it must enter into Open Source Licences; 3.2b. Notify will have no contractual obligations or responsibilities in respect of Open Source Licences and, in particular, will not be providing patches or fixes in respect of the Open Source Software; and 3.2c. any termination of the Open Source Licences may prevent it from making substantial use of the Hosted Services, but shall not entitle it to terminate this Contract and/or receive any refund under this Contract.

3.3 The Client agrees that it will enter into Open Source Licences and will maintain such Open Source Licences for the duration of this Contract and abide by the terms and conditions of Open Source Licences.

3.4 Notify warrants at the Effective Date that the provision of Open Source Software as part of the Hosted Services shall not infringe the terms of the Open Source Licences.

3.5 In the event that any Open Source Licence is terminated, or in the reasonable opinion of the Client or Notify, use of the Open Source Software infringes the Intellectual Property Rights of a third party, save in respect of such termination or reasonable opinion arising as a result of a breach by either party of this paragraph 3, the parties shall use all reasonable endeavours to mitigate any adverse impact to the Hosted Services (which may include the sourcing of alternative software components), provided that if notwithstanding such mitigation the adverse impact to the performance or functionality of the Hosted Services is substantial, the Client shall be entitled to terminate this Contract on thirty (30) days’ prior written notice. Mitigation arising under this paragraph shall be deemed an Event of Force Majeure and the provisions of Clause 14.7 shall apply.

3.6 The Client shall indemnify and hold harmless Notify for all Costs arising from a breach of this paragraph 3, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Client of this paragraph 3.

1. INTRODUCTION

1.1 The provisions of this Schedule apply to the extent identified in the Order Form.

1.2 Notify wishes to grant, and the Client wishes to enjoy, the rights set out in Clause 1, in relation to the API and API Data, subject to the terms of this API Licence.

2. INTERPRETATION

2.1 The definitions and rules of interpretation in this clause apply in this API Licence, in addition to the definitions and rules of interpretation set out in the MSA Terms & Conditions.

2.2 Clause, Appendix and paragraph headings shall not affect the interpretation of this API Licence.

2.3 Unless expressly stated otherwise, or the context otherwise requires:

2.3.1 words in the singular shall include the plural and, in the plural, shall include the singular;

2.3.2 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;

2.3.3 a reference to one gender shall include a reference to the other genders; and

2.3.4 any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.4 In the case of conflict or ambiguity between any provision contained in the body of this API Licence and any provision contained in the appendices, the provision in the body of this API Licence shall take precedence.

2.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

2.6 References to clauses and Appendices are to the clauses and Appendices of this API Licence and references to paragraphs are to paragraphs of the relevant Appendices.

2.7 The Appendices form part of this API Licence and shall have effect as if set out in full in the body of this API Licence. Any reference to this API Licence includes the Appendices.

3. LICENCE

3.1 In consideration of the Fee paid by the Client to Notify, receipt of which Notify hereby acknowledges, Notify grants to the Client a non-exclusive licence during the term of this API Licence:

3.1.1 for the Authorised Users to access the API solely for the purposes of:

(a) internally developing the Applications that will communicate and interoperate with Notify Software for the Release Purpose;

(b) making API Calls in compliance with the API Limits;

3.1.2 to display the API Data received from the API, together with any Derived Data, within the Application for the Release Purpose;

3.1.3 display certain Notify Marks in compliance with the Notify Brand Guidelines solely in connection with the use of the API, API Data and the Applications and not in connection with the advertising, promotion, distribution, or sale of any other products or services.

3.2 The Client’s sole means of accessing the API, for the purposes of Clause 3.1, shall be via the API Key.

3.3 In relation to the scope of use set out in Clause 3.1 the Client shall not (and shall ensure End Users do not):

3.3.1 make API Calls in excess of the API Limits;

3.3.2 remove any proprietary notices from the API or API Data;

3.3.3 use the API or API Data in any manner or for any purpose that infringes, misappropriates, or otherwise infringes any Intellectual Property Rights or other right of any person, or that violates any applicable law;

3.3.4 design or permit the Applications to disable, override, or otherwise interfere with any Notify-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;

3.3.5 use the API, including in any of the Applications, to replicate or attempt to replace the user experience of the Notify Software;

3.3.6 attempt to cloak or conceal the Client’s identity or the identity of the Applications when requesting authorisation to use the API or making an API Call;

3.3.7 except to the extent expressly permitted under this Clause 3:

(a) combine or integrate the API or API Data with any software, technology, services, or materials not approved in advance by Notify, including AI-related technologies, large language or other foundation models;

(b) pass or allow access to the API or API Data to any third party;

(c) access all or any part of any the API or API Data to build a product, service and/or software which competes with the API or the goods, services or software provided by Notify (or any part of it); or

(d) commercially exploit, sell, license or distribute any API or API Data or any products and/or services incorporating the results retrieved using the API or via an API Call.

3.3.8 scrape, build databases or otherwise create copies of any data accessed or obtained using the API, except as necessary to enable a usage scenario for the Application that has been approved by Notify;

3.3.9 use the API, or any API Data, to conduct performance testing of the Notify Software unless expressly permitted by Notify pursuant to a duly executed written agreement;

3.3.10 make the Application available for use in a manner that circumvents the need for users to obtain a valid license to the Notify Software or service that is accessed through the API;

3.3.11 misrepresent expressly, by omission, or implication, the need for users to obtain a valid license to the Notify Software or service that is accessed through the API;

3.4 Except as expressly stated in this Clause 3, the Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the API or Notify Software, in whole or in part (except to the extent that applicable law overrides this provision or any part hereof).

3.5 The Client shall not use the API or API Data other than as specified in this Clause 3 without the prior written consent of Notify.

3.6 Without prejudice to its other rights and remedies under this API Licence, should the Client use the API or API Data other than as specified in this Clause 3 without the prior written consent of Notify, Notify may, in its sole discretion:

3.6.1 terminate this API Licence, or suspend the Client’s access and use to the API and the API Data, on written notice with immediate effect; and/or

3.6.2 require the Client to pay, for broadening the scope of the licences granted under this API Licence to cover the unauthorised use, an amount equal to the fees which Notify would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in Clause 8.7 of the MSA Terms & Conditions, from such date to the date of payment.

3.7 Notify shall be entitled to suspend the Client’s access to, and use of, the API and the API Data under Clause 3.6.1 until such time as the breach is remedied to Notify’s reasonable satisfaction, which may include (where payment is required under Clause 3.6.2) until Notify has received that payment in cleared funds from the Client.

4. CLIENT RESPONSIBILITIES

4.1. The Client will be provided with an API Key during the registration process. The Client may not share the API Key with any third party other than Authorised Users, must keep the API Key and all log-in information secure, and must use the API Key as the Client’s sole means of accessing the API. The API Key may be replaced at any time by Notify on notice to the Client.

4.2 The Client shall:

4.2.1 ensure that no End User other than an Authorised User accesses the API.

4.2.2 without affecting its other obligations under this API Licence, comply with all applicable laws and regulations with respect to its activities under this API Licence;

4.2.3 carry out all of its responsibilities set out in this API Licence 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, Notify may adjust any agreed timetable or delivery schedule as reasonably necessary;

4.2.4 keep a complete and accurate record of:

(a) its End Users;

(b) its development of the Application;

(c) its use of the API and API Data;

(d) its other obligations under this API Licence,

and produce such records to Notify on request from time to time; and

4.2.5 ensure that it informs Notify as soon as it becomes aware of any unauthorised use of the API or API Data by any person.

4.3 Subject to Clause 13.2, the Client is responsible and liable for all uses of the API resulting from access provided by the Client, directly or indirectly, whether such access or use is permitted by or in breach of this API Licence, including use with any Application or third-party software. Without limiting the generality of the foregoing, the Client is responsible for all acts and omissions of End Users in connection with the Application and their use of the API and API Data, if any. Any act or omission by an End User that would constitute a breach of this API Licence if taken by the Client will be deemed a breach of this API Licence by the Client. The Client shall take reasonable efforts to make all End Users aware of this API Licence’s provisions as applicable to such End Users and shall cause End Users to comply with such provisions.

4.4 The Client shall monitor the use of the API for any activity that breaches applicable laws, rules, and regulations or any terms and conditions of this API Licence, including any fraudulent, inappropriate, or potentially harmful behaviour, and promptly restrict any offending users of the Applications from further use of the Applications.

4.5 The name of the contact that the Client gave to Notify when the Client applied for an API Key must be reachable at all times for privacy and security questions or concerns. The Client can change this name or contact by signing up for a new API Key and providing the correct contact information and using the new API Key instead.

5. MAINTENANCE RELEASES

5.1 Notify shall make Maintenance Releases available to the Client no later than such releases are generally made available to its other customers. Notify warrants that no Maintenance Release will adversely affect or change the then existing interface, facilities or functions of the API.

5.2 The Client is required to make any change to the Application that is required for integration as a result of such Maintenance Release at the Client’s sole cost and expense as soon as reasonably practicable after receipt.

6. FEEDBACK

6.1 The Client may, in its discretion, provide Feedback to Notify, but Notify shall not be obliged to take any action in response to the Feedback.

6.2 Feedback, even if marked confidential, will not create any confidentiality obligations on Notify unless Notify has otherwise agreed in writing, signed by an authorised signatory of Notify.

6.3 Without prejudice to its other rights and remedies (including under this API Licence), Notify will be free to use, disclose, reproduce, distribute, implement in the Notify Software or the API and otherwise commercialise all Feedback provided by the Client without obligation or restriction of any kind, and the Client hereby waives all rights to be compensated or seek compensation for the Feedback and will ensure that any relevant moral rights are waived. These rights survive this API Licence.

7. AUDIT

7.1 Notify, or its representative, may physically or remotely monitor and audit the Client’s use of the API and the API Data to ensure the Client is complying with the terms of this API Licence, provided any physical audit shall take place on reasonable advance notice and at reasonable times. Such audit may include an audit of the Usage Data to verify the name and password of each End User.

7.2 If the audit referred to in Clause 7.1 reveals that the API or API Data has been used or accessed other than in accordance with this API Licence, then, without prejudice to Notify’s other rights, the Client shall promptly disable such access and use and Notify shall be entitled to revoke any existing passwords, or not issue any new passwords, to any End User so implicated in the unauthorised use or access.

7.3 The Client shall keep complete and accurate records to demonstrate its compliance with the terms of this API Licence, and the fulfilment of its obligations under it, including those matters set out at Clause 4.2.4 and shall make such records available for inspection by Notify, or Notify’s representative, as part of the audit referred to in Clause 7.1.

8. FEES

8.1 The Client shall pay to Notify the licence fees set out in the Order Form.

9. CONFIDENTIALITY AND PUBLICITY

9.1 For the avoidance of doubt the API, and the API Key shall be considered the confidential information of Notify for the purposes of this API Licence.

9.2 The Client shall not make, or permit any person to make, any public announcement concerning this API Licence without the prior written consent of Notify, 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.

9.3 The provisions of Clause 13 of the Master Services Agreement shall apply to any Personal Data that forms part of the API Data.

10. SYSTEMS AND SECURITY

10.1 The Client:

10.1.1 is responsible for the operation and security of the Client System and the Application;

10.1.2 shall ensure that the Client System and the Application comply with any relevant specifications provided by Notify from time to time;

10.1.3 shall be, to the extent permitted by law and except as otherwise expressly provided in this API Licence, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from the Client System and the Application to the Notify Software, 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; and

10.1.4 will take reasonable steps to:

(a) secure the API, the API Data, the Notify Marks and the API Key (including all copies thereof) from infringement, misappropriation, theft, misuse of unauthorised access; and

(b) prevent the introduction of any Virus or Vulnerability into Notify’s network and information systems (including the Notify Software), via the Client’s (or End User’s) use of the API, the API Key or otherwise.

10.2 The Client:

10.2.1 is required to develop the Application, and undertake API Calls, in line with the Technical Standards;

10.2.2 is required to request API Data via the API in the format specified in the Data Standards; and

10.2.3 must adhere to the Security Standards and the Service Levels.

10.3 The Client must promptly report any security deficiencies in or intrusions to its Applications that the Client discovers to Notify in writing. The Client will work with Notify to immediately correct any security deficiency and will disconnect immediately any intrusions or intruder. In the event of any such security deficiency or intrusion, the Client will make no public statements without prior written and express permission from Notify in each instance.

11. EXPORT

11.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this API Licence (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

11.2 Each party undertakes:

11.2.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

11.2.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

12. SUPPLIER’S WARRANTIES

12.1 Notify undertakes that the API shall perform substantially in accordance with the Specification.

12.2 The undertaking at Clause 12.1 shall not apply to the extent of any non-conformance which is caused by use of the API contrary to Notify’s instructions, or modification or alteration of the API by any party other than Notify or Notify’s duly authorised contractors or agents. If the API does not conform with the foregoing undertaking, Notify will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 12.1.

12.3 Notify:

12.3.1 does not warrant that:

(a) the Client’s use of the API will be uninterrupted or error-free;

(b) the API and/or the API Data obtained by the Client through the API will meet the Client’s requirements;

(c) the API or the API Data will be free from Vulnerabilities or Viruses; or

(d) the API or API Data will comply with any Heightened Cybersecurity Requirements.

13.2.2 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 the Client acknowledges that the API and API Data may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

12.4 This API Licence shall not prevent Notify 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 API Licence.

12.5 Notify warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this API Licence.

13. LIMITS OF LIABILITY

13.1 Except as expressly and specifically provided in this API Licence:

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

13.1.2 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 this API Licence; and

13.1.3 the API and the API Data are provided to the Client on an “as is” basis.

13.2 The exclusions in Clause 13.1 shall apply to the fullest extent permissible at law, but for the avoidance of doubt Notify does not exclude liability for any liability which may not be excluded by law.

13.3 Any version of the API designated as “preview”, “pre-release” or “beta” (Preview API), may not work in the same way as a final version. Notify may change or not release a final or commercial version of a Preview API in its sole discretion.

13.4 All references to “Notify” in this Clause 13 shall be treated as including all employees, subcontractors and suppliers of Notify and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

14. INTELLECTUAL PROPERTY RIGHTS

14.1 All rights, title and interest in any Feedback shall vest in Notify on creation. The Client hereby assigns to Notify absolutely with full title guarantee all right, title and interest in and to the Feedback including:

14.1.1 the entire copyright and all other rights in the nature of copyright subsisting in the Feedback;

14.1.2 any database right subsisting in the Feedback;

14.1.3 all other rights in the Feedback of whatever nature, including Intellectual Property Rights, whether now known or created in the future, to which the Client is now, or at any time after the Effective Date may be, entitled by virtue of the laws in force in the United Kingdom and in any other part of the world;

14.1.4 the absolute entitlement to any registrations granted pursuant to any of the applications comprised in the Feedback;

in each case for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on, or after the Effective Date.

14.2 All use by the Client of the Notify Marks, if any, will comply with any usage guidelines that Notify may specify from time to time. The Client acknowledges that the Client’s use of Notify Marks in connection with this API Licence will not create any right, title, or interest in or to Notify Marks in favour of the Client and all goodwill associated with the use of Notify Marks will inure to the benefit of Notify.

14.3 The Client will promptly inform Notify if the Client becomes aware of any infringement of any Intellectual Property Rights in the API, API Data, Derived Data, Feedback and the Notify Marks and will fully co-operate with Notify in any legal action taken by Notify to enforce Notify’s Intellectual Property Rights.

14.4 The Client acknowledges that all Intellectual Property Rights in the API, Feedback and the Notify Marks, belong and shall belong to Notify or the relevant third-party owners (as the case may be), and the Client shall have no rights in or to the same other than the right to use it in accordance with the terms of this API Licence.

14.5 If a claim or action is brought against the Client alleging that the possession or use of the API, or the Notify Marks (or any part thereof) in accordance with the terms of this API Licence infringes the UK Intellectual Property Rights of a third party (Claim), Notify may at its sole option and expense:

14.5.1 procure for the Client the right to continue to use the API or the Notify Marks (or any part thereof) in accordance with the terms of this API Licence;

14.5.2 modify the API or the Notify Marks so that the same ceases to be infringing;

14.5.3 replace the API or the Notify Marks with non-infringing versions; or

14.5.4 terminate this API Licence immediately by notice in writing to the Client and refund any of the Fees paid by the Client as at the date of termination (less a reasonable sum in respect of the Client’s use of the API to the date of termination) on return of all copies thereof,

provided that if Notify modifies or replaces the API, the modified or replacement versions must comply with the warranties contained in Clause 12.

This Clause 14 constitutes the Client’s exclusive remedy and Notify’s only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 13 of this API Licence and Clause 14.4 of the MSA Terms & Conditions.

15. DURATION AND TERMINATION

15.1 Unless terminated earlier in accordance with its terms, this API Licence shall commence on the Effective Date and shall continue in force until the Master Services Agreement expires or is terminated in accordance with its terms.

15.2 Without affecting any other right or remedy available to it, either party may terminate this API Licence with immediate effect by giving written notice to the other party if:

15.2.1 the other party fails to pay any amount due under this API Licence on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;

15.2.2 the other party commits a material breach of any other term of this API Licence and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;

15.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

15.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

15.2.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;

15.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

15.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

15.2.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

15.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

15.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;

15.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 15.2.3 to Clause 15.2.10 (inclusive);

15.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

15.2.13 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this API Licence is in jeopardy.

15.3 Any provision of this API Licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this API Licence shall remain in full force and effect.

15.4 Termination or expiry of this API Licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this API Licence which existed at or before the date of termination or expiry.

15.5 Termination of this API Licence shall not affect the Master Services Agreement, which shall remain in full force and effect. For the avoidance of doubt, this API Licence shall terminate when the Master Services Agreement expires or is terminated in accordance with its terms.

15.6 On termination for any reason:

15.6.1 all rights granted to the Client under this API Licence shall cease;

15.6.2 the Client shall cease all activities authorised by this API Licence;

15.6.3 the Client shall immediately pay to Notify any sums due to Notify under this API Licence; and

15.6.4 the Client shall immediately delete or return to Notify (at Notify’s option) all copies of the API then in its possession, custody or control and, in the case of deletion, certify to Notify that it has done so.

16. SUB-LICENSING

16.1 The Client shall not:

16.1.1 sub-license, assign or novate the benefit or burden of this API Licence in whole or in part;

16.1.2 allow the API to become the subject of any charge, lien or encumbrance; and

16.1.3 deal in any other manner with any or all of its rights and obligations under this API Licence, without the prior written consent of Notify, such consent not to be unreasonably withheld or delayed.

16.2 Notify may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this API Licence, provided it gives written notice to the Client.

16.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

16.4 Notwithstanding Clause 9 a party assigning any or all of its rights under this API Licence may disclose to a proposed assignee, on a confidential basis, any information in its possession that relates to this API Licence or its subject matter, the negotiations relating to it and the other party which is necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 16.4 shall be made until notice of the identity of the proposed assignee has been given to the other party.

17. VARIATION

No variation of this API Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

APPENDIX 1

API

Release Purpose

The API Data shall be used for the following reasons only:

For use in health and safety management and compliance for the benefit of the Client’s business only.

APPENDIX 2 – Security Requirements

PART 1 – Technical Standards

The API is designed to be performant, scalable and with consistency of data structure following industry best practice.

The API is built using the RESTful principles using HTTP verb requests to manipulate data.

PART 2 – Data Standards

All data is returned in a structured JSON file format. JSON object keys are formatted using camelCase.

Dates are formatted in ISO 8061 format. Data will be returned encoded in Unicode Transformation Format (UTF-8) standard.

Note: For further information relating to end points and data structure format, please refer to Notify’s SWAGGER documentation https://www.notifytechnology.com/developers/.

PART 3 – Security Standards

Requests to the API must be made using a secure HTTPS connection and must include a valid API Key. This key will be provided to the Authorised User as outlined in Appendix 3.

The latest secure and supported Transport Layer Security (TLS) must be used when communicating with the API.

Important: Secure Sockets Layer (SSL) or TLS v1.0 must not be used.

Part 4 – Versioning & Backwards Compatibility

Each API end point includes a version number to help ensure backwards compatibility when changes are made in the future.

Versioning guarantees that existing functionality continues to be supported, whilst providing the increased flexibility for Clients to use new features and data points, as and when they are available.

Should Notify decide to deprecate an old version of an end point, it will give reasonable notice whilst also ensuring that all API documentation (https://www.notifytechnology.com/developers/) is kept up to date.

Part 5 – Service Levels

The API aligns its service availability, support and maintenance as described in Schedule 1 – SLA of the Notify Master Services Agreement.

APPENDIX 3 – Specification

Introduction

The API provides an Authorised User the ability to interact with its User Data.

Access to the API requires an additional module licence.

End Points and Supported Use Cases

The API supports the requesting of Incident data from the Client’s Notify Software to support the following use cases.

Note: Detailed documentation relating to Notify’s end points can be found here:
https://www.notifytechnology.com/developers/.

Public API Support and API Keys

All support on the API will be managed via Notify’s service desk.

Notify is responsible for setting up and configuring the API Integration with the Client’s authorised representative and will provide the API Key via a secure communication channel.