Terms and Conditions
The below terms and conditions were previously accessed at infogrid.io/termsandconditions and infogrid.io/standard-terms-and-conditions.
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These Terms and Conditions (the “Terms”) are by and between Information Grid, Ltd., doing business as Noda, company number 10915172 with a registered office at Third Floor, Marlborough House, Victoria Road South, Chelmsford, Essex CM1 1LN, United Kingdom (“IG”), and the partner or client (the “Client”) named in the order form entered between the Parties that references or incorporates these Terms (the “Order”). These Terms with the Order, and any schedules that are referenced in and incorporated in the Terms or Order (the “Schedules”) are together referenced as the “Agreement”. IG and the Client each are referenced as a “Party” and together, the “Parties”. Capitalised terms used but not defined in these Terms have the meanings set forth in the Order.
1. IG OFFERING
1.1 Order. IG will provide Client with the IG Offering, which is made up of the Equipment, Documentation, SaaS, and other Services identified in the Order.
1.2 Usage Restrictions. Client will not and will not permit or enable its Authorised Users or any third parties to use the IG Offering other than as permitted in the Agreement or the Documentation. Except to the extent expressly permitted under this Agreement, Client will not, and will not permit or enable any Authorised Users or third parties to: (a) upload, transmit, or distribute to or through the IG Offering any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) violate of any applicable law or third-party rights in its use of the IG Offering; (c) copy, modify, distribute, adapt, create derivative works of, reverse engineer, disassemble, or decompile any part of the IG Offering, except as expressly provided for in the Agreement; (d) lease, licence, resell, assign or otherwise commercially exploit the IG Offering to any third party; (e) use the IG Offering in order to build a competitive product; (f) remove any proprietary notices from the IG Offering; (g) use the IG Offering in a way that could damage, disable or compromise IG’s systems of security or interfere with other users; (h) disclose to any third party the results of any benchmark tests or other evaluation of the IG Offering; or (i) allow any third party who is not an Authorised User to access the IG Offering.
2. SAAS
2.1 Account. Use of and access to the SaaS requires registration of an account (“Account”). Client is responsible for all activities that occur under Client’s Accounts and by its Authorised Users. Client will and will ensure that its Authorised Users keep its Account credentials, including password information, secure and not share such information with a third party, including other Authorised Users. “Authorised Users” means the individuals to whom Client grants permissions to access the SaaS under Client’s Accounts. Where Client has End Users in accordance with the Order (which may be the case where Client is a launch or other partner as stated in the Order), such End Users will be considered Authorised Users for the purposes of this Agreement.
2.2 Right to Access. Subject to the provisions of this Agreement, IG hereby grants Client a limited, revocable, non-exclusive, non-transferable, right to access and use the SaaS and related Documentation during the Term solely for use by Client’s Authorised Users for the Permitted Purpose within the Territory as provided for in the Order.
2.3 Suspension. IG may temporarily suspend Client’s and its Authorised Users’ access to the SaaS if IG reasonably determines or suspects that: (a) there is a threat or attack on the SaaS; (b) Client’s or its Authorised Users’ use of the SaaS disrupts or poses a security risk to the SaaS or to any other customer, partner, or vendor of IG; (c) Clients’ or its Authorised Users are using the SaaS in breach of the terms of this Agreement, including non-payment, or for fraudulent or illegal activities; (d) any Account Information is untrue, inaccurate, not current, or incomplete; (e) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution, or similar proceeding; or (f) IG’s provision of the SaaS is or becomes prohibited by applicable law; or (g) any vendor of IG has suspended or terminated IG’s access to or use of any third-party services or products required to enable Client’s access the SaaS. IG will provide written notice of any such suspension and to provide updates regarding resumption of access to the SaaS. IG will use commercially reasonable efforts to resume providing access to the SaaS as soon as reasonably possible after the event giving rise to the suspension is cured. IG will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Client or its Authorised Users may incur as a result of a suspension under this section. If a suspension under this section continues for 60 days or more because the event giving rise to the suspension is not cured, IG may terminate the Agreement by written notice.
3. EQUIPMENT
3.1 Title and Risk. The title, risk of theft, loss, or damage to any Equipment purchased from IG (“Purchased Equipment”) passes from IG to Client from the moment the Purchased Equipment is delivered to and accepted by the Client. Except where the Purchased Equipment is installed by IG, Client assumes any and all liability arising from installation of Purchase Equipment.
3.2 Acceptance. If Client does not notify IG of any material non-conformance with the relevant Documentation upon inspection of the Purchased Equipment (an “Equipment Defect”) within 7 days from the date of delivery (the “Acceptance Period”), Client will be deemed to have accepted the Purchased Equipment. If notified of an Equipment Defect within the Acceptance Period, IG will determine in its sole discretion whether the relevant Purchased Equipment does have an Equipment Defect. If IG determines that the Purchased Equipment has an Equipment Defect, IG will replace or repair the Purchased Equipment in question, provided Client returns said Purchased Equipment to IG within 14 days following IG’s written confirmation of the Equipment is Defect.
3.3 Existing Equipment. Client may use Equipment it has already available where IG approves the use of such (the “Existing Equipment”), provided: (a) the Existing Equipment is ready to use by the Effective Date of the applicable Order; (b) Client has provided IG with all requested information, and such information is accurate and current; (c) the Existing Equipment is relocated where required by IG.
3.4 Equipment Care. Client will use reasonable care to maintain all Equipment (whether Purchased Equipment or Existing Equipment) to enable the IG Offering and ensure at all times that the Equipment meets the specifications in the Documentation. Client understands, acknowledges, and agrees that in the event any Equipment no longer meets the specifications in the Documentation for any reason, select features of the SaaS may no longer function properly. IG will have no responsibility for any such failure and IG will provide no abatement or refund of Fees for such an interruption. In addition, except to the extent such movement or removal is performed by IG, Client assumes full responsibility for any movement or removal of Equipment including, without limitation, liability arising from personal injury or property damage.
4. CLIENT LOCATIONS.
4.1 Required Access and Cooperation. Client will: (a) provide IG with access to Client’s (or those of its Authorised Users, including End Users, as the case may be) buildings and locations (“Client Locations”) as requested by IG; (b) make available relevant and up to date schematic(s) of the Client Locations for deployment, power sockets, and cellular connectivity for the Purchased Equipment; (c) make available reasonably required access to relevant Client systems; (d) make available other relevant third parties for IG to be able to exercise its rights and perform its obligations under the Agreement, including the Installation Services (where applicable); (e) make all required third-party disclosures and obtain all required authorizations and consents in respect to any required access to Client Locations and relevant systems; and (f) provide other cooperation, information, and materials as requested by IG for the purpose of providing the IG Offering. Client acknowledges and agrees that non-fulfilment of the contingencies outlined in this section can lead to delays and cost overrun for which Client will be responsible.
4.2 Survey. In order to provide the IG Offering, IG may need to carry out a technical survey of the Client Location, either remotely or in person. Client agrees to cooperate and coordinate with IG to determine the time and scope of such survey to be carried out.
5. SUPPORT AND OTHER SERVICES
5.1 Support and SLA. IG will provide Support Services where provided for in the Order and in accordance with the IG’s Support, available at and SLA Schedule, available at , both of which may be updated from time to time by IG.
5.2 Training and Other Services. IG will make commercially reasonable efforts in providing Client with standard initial training on how to use the IG Offering as well as other services listed in the Order in accordance therein.
6. PAYMENT
6.1 Fees. Client will pay to IG the fees, expenses, and other payments in the amounts and manner as set out in the Order Form (the “Fees”). Except to the extent as otherwise set forth in the Order, Fees will be initially due on the Effective Date, then billed annually thereafter in advance and due within 30 days of the applicable invoice date. Client is responsible for paying applicable shipment charges and local customs and duties. Except as expressly provided for in this Agreement: (a) Fees for the SaaS subscription are payable for (and IG may invoice for such Fees) the entirety of the then current term (whether Initial Term or Renewal Term); and (b) all Fees are non-refundable. Client may not withhold or set-off any amounts due under the Agreement.
6.2 Rate Changes. IG will be entitled to increase the pricing for the Fees payable under the Agreement, including the amounts provided for in an Order, at the end of each 12 month period by giving not less than 90 days written notice to Client, including an appropriate increment to reflect annual inflationary adjustments.
6.3 Certain Taxes and Charges. Fees quoted in the Agreement do not include, and Client will pay, indemnify and hold IG harmless, from all value-added, personal property, or other taxes, and all applicable duties, tariffs, assessments, import fees, geographic certification warranties, local compliance costs or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the Agreement, other than taxes based on the net income or profits of IG.
7. TERM AND TERMINATION
7.1 Term. Unless terminated in accordance with the termination provisions below, the term of the Agreement will commence on the Effective Date and continue through the expiration or termination of all Orders entered under these Terms.
7.2 Termination. Either Party may terminate the Agreement: (a) upon 30 days prior written notice to the other Party in the event that the other Party materially breaches the Agreement and the breaching Party has failed to cure such breach to the notifying Party’s reasonable satisfaction within such notice period; or (b) by giving notice in writing to the other Party in the event that the other Party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the other Party and is not dismissed within 30 days.
7.3 Effects of Termination. Upon termination or expiration of the Agreement for any reason: (a) all access rights and licences granted by either Party; and (b) within 30 days after the termination date, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party as may be set forth in the NDA.
7.4 Survival. Any provision of the Agreement which expressly or by implication is intended to continue in force after termination or expiry will remain in full force and effect.
8. CONFIDENTIALITY, PRIVACY, AND SECURITY
8.1 Scope of Confidential Information. “Confidential Information” of a Party means any and all sensitive technical, financial, business, organisational, and other information disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under this Agreement that is designated as confidential or should reasonably be deemed confidential by the nature of the information or circumstances of disclosure, and includes but is not limited to Personal Data. Notwithstanding the foregoing, except where the information is Personal Data, Confidential Information will not be deemed to include information, where the Receiving Party can demonstrate with competent documented evidence, that such information: (a) was in the public domain at the time it was disclosed to the Receiving Party; (b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; (d) was rightfully communicated to the Receiving Party free of any obligation of confidentiality subsequent to the time it was disclosed to the Receiving Party; or (e) was developed by employees or agents of the Receiving Party who had no access to any of Disclosing Party’s Confidential Information, or consists only of information commonly known to persons reasonably skilled in the Receiving Party’s industry.
8.2 Duty of Confidentiality. The Receiving Party will hold in strict confidence any Confidential Information of the Disclosing Party. In addition, the Receiving Party will adhere to industry best practices for securing the Confidential Information of the Disclosing Party so as to reasonably ensure that such Confidential Information is not lost, stolen or otherwise used, modified or accessed by any unauthorised person. The Receiving Party will have the limited right to use the Confidential Information only to perform its obligations or exercise its rights under the Agreement. Except as explicitly permitted herein or by prior written consent of the Disclosing Party, the Receiving Party will not use, disclose or distribute to any person, firm or entity any Confidential Information and will not permit any person, firm or entity to use, disclose or distribute any Confidential Information; provided that the Receiving Party may disclose or distribute such Confidential Information to the following: (a) its officers, directors, employees, and permitted subcontractors who have a business need to know of such Confidential Information; and (b) its attorneys, accountants, consultants, agents, independent contractors or professional advisors ((a) and (b), the “Receiving Party Agents”) who (i) have a business need to know of such Confidential Information and (ii) are subject to fiduciary, professional or written obligations of confidentiality sufficient to provide the protections to the Disclosing Party substantially similar to those set forth herein. The Receiving Party will remain ultimately responsible for the use, disclosure or distribution of Confidential Information by the Receiving Party Agents. Any failure by the Receiving Party Agents to comply with the terms hereof will constitute a breach of these Terms by the Receiving Party. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorised disclosure of the Confidential Information of the Disclosing Party.
8.3 Compelled Disclosure. The Receiving Party may disclose certain Confidential Information of the Disclosing Party without being in violation of these Terms, to the extent such disclosure is required by a valid subpoena, disclosure order or investigative demand of a court or other governmental agency having jurisdiction; provided that: (a) the Receiving Party provides the Disclosing Party with prompt written notice upon receipt of official notice of such process, order or demand and prior to such disclosure, unless such notice is prohibited by court order or rules of the investigating agency; (b) the Receiving Party makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, at the expense of the Disclosing Party, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation requires or for which the order was issued, or other appropriate remedy; and (c) Receiving Party provides the confidentiality protections under these Terms for any Confidential Information so disclosed for all purposes other than such legally compelled disclosure.
8.4 Return or Destruction. Upon termination or expiration of the Agreement, or upon reasonable written request of either Party, each Party will promptly return to the Disclosing Party or destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof in physical or electronic form. Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information that are stored on the Receiving Party’s IT backup and disaster recovery systems until the ordinary course deletion thereof, or for legal and bookkeeping purposes in compliance with its reasonable recordkeeping policies and procedures.
8.5 Survival. Each Party’s confidentiality obligations hereunder will survive the expiration or termination of the Agreement and will be binding upon such Party’s heirs, successors, and assigns for three (3) years from the termination or expiration of the Agreement; provided further that: (a) with respect to Confidential Information that constitutes a trade secret under applicable law and is identified as such by the Disclosing Party, such rights and obligations will survive such expiration until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Receiving Party or its representatives; and (b) with respect to Personal Data disclosed by Disclosing Party hereunder, the survival period will last for the period of time required under the applicable data protection laws.
8.6 Privacy and Security. Client acknowledges that IG’s use of Client Data, insofar as it amounts to Personal Data, is subject to the IG Privacy Policy, available at , which may be updated from time to time by IG. Client will not collect, store, process, or otherwise submit any Client Data that is Personal Data within or to the SaaS except to the extent allowed in the applicable Order. Client will use and ensure its Authorised Users use no less than industry standard measures in maintaining the physical, technical, and administrative safeguards in its use of the Services, Equipment, and for all Client Materials. “Client Data” means, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client, including its Authorised Users, through the SaaS. “Client Materials” means information, data (including Client Data), systems, hardware, equipment (including Existing Equipment), premises (including Client Locations), and other materials used for the IG Offering. “Personal Data” means any data that is classified as personal information, personal data, personally identifiable information, or similar under applicable data privacy and security laws and regulations. “Anonymized Data” means data that has been aggregated and anonymized deriving from Client’s and its Authorised Users’ use of the SaaS.
9. DATA AND INTELLECTUAL PROPERTY
9.1 Intellectual Property Ownership. As between the Parties: (a) IG owns all right, title, and interest, including all intellectual property rights, in and to the Anonymized Data and all components of the IG Offering (except the extent explicitly transferred herein), and any improvements, enhancements or modifications thereto or derivative works thereof; and (b) Client owns all right, title, and interest, including all intellectual property rights, in and to Client Materials. IG reserves all rights not expressly granted to you in the Agreement. Except for the limited rights and licences expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the IG Offering.
9.2 Feedback. If Client, an Authorised User, or any their affiliates, personnel, contractors, agents, or representatives (“Client Representatives”) provide means comments, suggestions, or other feedback in any medium in relation to any of the IG Offering, including without limitation, suggested new features or functionality (“Feedback”), Parties agree that IG will treat the Feedback as non-confidential to Client. Client hereby assigns to IG, and will cause Client Representatives to assign, all right, title, and interest in any intellectual property rights contained in the Feedback to IG, and agrees that IG is free to use the Feedback without any attribution or compensation to Client or any third party.
9.3 Client Materials. Client is solely responsible for: (a) obtaining all required third party consents and making all required third party disclosures regarding Client Materials in accordance with applicable laws and agreements with the third parties where applicable; (b) the development, content, operation, maintenance and use of Client Materials. Client hereby grants to IG a transferrable, sub-licensable, royalty-free, fully paid-up worldwide licence to copy, use, reproduce, modify, develop, collect, distribute and store Client Materials for the purpose of providing the IG Offering and exercising any rights provided for under this Agreement, including the right to create Anonymized Data from Client Data. IG will use the Client Materials in providing the IG Offering “as is”. Client acknowledges, understands, and agrees that IG is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Client Data.
9.4 Anonymized Data. Client acknowledges that upon creation of such, that IG will own all intellectual property rights in the Anonymized Data and may use the Anonymized Data for any lawful purpose.
9.5 Third-Party Components. The IG Offering may make use of software, code, or related materials created by third parties, including, without limitation, open source or freeware software (“Third-Party Components”), which may be subject to licence terms in addition to the Agreement. Client acknowledges and agrees that these accompanying licence terms govern their use. Nothing in the Agreement limits Client’s rights under, or grants Client rights that supersede, the licence terms that accompany any Third-Party Components. IG will pass through to Client any warranty or other rights it receives for any Third-Party Components reasonably cooperate with Client in enforcing such rights, at Client’s expense.
10. REPRESENTATION AND WARRANTIES
10.1 Equipment Warranty. During the Equipment Warranty Period, IG warrants that all Purchased Equipment will be free from Equipment Defects (the “Equipment Warranty”). The “Equipment Warranty Period” is the period beginning on the day after the Acceptance Period expires and continuing for one (1) year thereafter. If the Purchased Equipment fails to meet the Equipment Warranty during the Equipment Warranty Period, IG will, at its election, either: (a) repair or replace the Equipment Defects at IG’s sole expense; or accept the return of the Purchased Equipment and refund the money paid by Client for the Purchased Equipment.
10.2 Equipment Warranty Exclusions. The Equipment Warranty does not cover Purchased Equipment that has been subject to: (a) any modifications, alterations, tampering, or improper maintenance or repairs, handling, storage, installation, testing, or other use that was not in accordance with the installation guide or other instructions provided by IG; (b) a Force Majeure Event (collectively “Ineligible Equipment”).
10.3 Equipment Warranty Conditions. To make a claim under the Equipment Warranty set forth herein, Client must: (a) notify IG of the intention to make a claim by emailing during the Equipment Warranty Period; and (b) comply with any IG return shipping instructions, if applicable. IG will have no warranty obligations with respect to returned Purchased Equipment if it determines, in its reasonable discretion after examination, that the Purchased Equipment is Ineligible Equipment.
10.4 Client Representations and Warranties. Client represents and warrants that: (a) it owns all right, title, and interest, including all intellectual property rights, or has the requisite rights in and to Client Materials, including Client Data; (b) both Client Materials and Clients’ and its Authorised Users’ use of the IG Offering are in compliance with the Agreement; (c) Client Materials and any Authorised User’s use of Client Materials will not violate any policy or terms referenced in or incorporated into the Agreement or any applicable law; (d) it has all necessary authorization to purchase and pay for the IG Offering indicated in each Order; (e) all information provided to IG, including information in relation to Existing Equipment and Account information, is and will remain during the term of the Agreement, true, accurate, current, and complete.
10.5 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE IG OFFERING IS PROVIDED “AS IS". IG HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT. IG SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CLIENT WILL NOT GIVE OR MAKE WARRANTIES OR REPRESENTATIONS ON BEHALF OF IG AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER FEATURES OF THE IG OFFERING OR RESULTS THEREOF. IG DOES NOT PROVIDE ANY REPRESENTATION, WARRANTY, OR GUARANTEE IN RELATION TO THE ACCURACY OF ANY DATA GENERATED FROM THE IG OFFERING AND WILL HAVE NO LIABILITY WITH RESPECT TO HOW THE DATA IS USED AND RELIED UPON, ANY ANALYSIS CREATED IN CONNECTION WITH THE DATA, OR ANY RESPONSIBILITY FOR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN CONNECTION WITH SUCH.
11. TRIAL VERSION.
During the term of this Agreement, IG may from time to time permit Client to access and use early access, beta, or trial versions of all or certain features of the SaaS (“Trial Version”). Trial Versions are for evaluation purposes, such as for testing, confirming, or training. The Trial Version may be used only by Client to review, evaluate and demonstrate the IG Offering internally or as otherwise stated in an Order. Except to the extent permitted under an Order, Client will not: (a) use the Trial Version for any commercial purposes whatsoever, including but not limited to training, application deployment or production purposes; (b) disclose the results of performance benchmarks obtained using the Trial Version to any third party without IG’s prior written consent; or (c) access or use the Trial Version under more than one access credential. CLIENT UNDERSTANDS AND AGREES THAT TRIAL VERSIONS ARE STILL IN ITS TESTING PHASE AND IS BELIEVED TO CONTAIN DEFECTS. A PRIMARY PURPOSE OF THE TRIAL VERSIONS IS TO OBTAIN FEEDBACK ON PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CLIENT IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE TRIAL VERSIONS OR ACCOMPANYING MATERIALS OR DOCUMENTATION. EXCEPT TO THE EXTENT EXPLICITLY PROVIDED FOR IN AN ORDER, ANY TRIAL VERSIONS MADE AVAILABLE BY IG TO CLIENT WILL BE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS: (X) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (TO THE FULLEST EXTENT PERMITTED BY LAW); (Y) WITHOUT ANY OBLIGATION OF IG TO PROVIDE ANY SUPPORT SERVICES OR SERVICE LEVEL AGREEMENTS INCLUDING ANY SERVICE CREDITS; AND (Z) WITHOUT ANY RIGHT TO INDEMNITY FOR CLIENT’S ACCESS TO, AND USE OF, THE TRIAL VERSION.
12. LIABILITY AND INDEMNIFICATION
12.1 Limitation of Liability. In no event will either Party be liable to the other Party for any: (a) indirect or consequential loss or damages; lost savings, income, profit, data, use, or goodwill; (b) business interruption; or (c) personal or property damage arising out of or in any way connected to the Agreement; in each case even if notified in advance of such possibility, and regardless of cause of action or the theory of liability, whether in contract, tort or otherwise. The total aggregate liability of either Party in connection with or under the Agreement in relation to claims and liabilities arising under the Confidentiality, Privacy, and Security section (including breaches of the NDA) occurring within each consecutive 12-month period of the term of this Agreement will not exceed 3 times the Fees paid or to be paid in that relevant 12 month period. The total aggregate liability of either Party in connection with or under the Agreement in relation to all other claims and liabilities occurring within each consecutive 12-month period of the term of this Agreement will not exceed the Fees paid or to be paid in that relevant 12 month period.
12.2 Exclusions to Limitations. The Parties’ liability for the following types of liability will not be subject to limitation or exclusion: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; liability that cannot be excluded or limited by law; (c) Client’s obligation to pay the Fees and the costs of collection; and (e) either Party’s indemnification obligations hereunder.
12.3 Infringement Indemnification. IG will indemnify, defend, and hold Client harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses, including reasonable legal fees (“Losses”), awarded against Client in a final judgment arising out of a third-party claim that the SaaS or Purchased Equipment infringes or misappropriates any intellectual property right of any third party enforceable in the Territory, provided that Client promptly notify IG in writing of the third-party claim and reasonably assist IG with the defence of any such claim. Client may participate in the defence at Client’s own cost.
12.4 Mitigation. If a third-party claim is made in accordance with the above provision, or IG anticipates such a third-party claim will be made, Client agrees to permit IG, at IG’s sole discretion, to: (a) modify or replace the SaaS or Purchased Equipment, or any component or part thereof, to make it non-infringing, or (b) obtain the right for Client to continue use the SaaS or Purchased Equipment, as the case may be. If IG determines that neither alternative is reasonably available, IG may terminate the Agreement, in its entirety or with respect to the affected component or part, immediately on written notice to Client. In such case, IG will refund the amounts that Client prepaid but unused period and portion of the subscription for the SaaS. These provisions set forth Client’s sole remedies and IG’s sole liability and obligation for any actual, threatened, or alleged third-party claims that the IG Offering infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
12.5 Exclusions to Infringement Indemnification. The above infringement indemnification obligations of IG will not apply to the extent that any such third-party claim arises from: (a) a use of an outdated version of the IG Offering after written notice of a new version and reasonable cure period, if the infringement would have been avoided by use of the current version; (b) Client’s modification of the IG Offering, if the infringement would have been avoided except for such modification; (c) the combination or use of the IG Offering with materials not supplied by IG, if such infringement would have been avoided by the use of such IG provided materials alone; (d) modification of the IG Offering according to Client’s instructions or design; or (e) Client Materials, including Client Data.
12.6 Client Indemnification. Client will indemnify and hold harmless IG and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to: (a) Client Materials, including Client Data; (b) misuse of the IG Offering, including any Purchased Equipment; (c) use of the IG Offering in combination with any third-party software, application, or service; (d) Client’s breach of its obligations, representations or warranties under the Agreement; or (e) Client’s negligence, more culpable conduct, or breach of any applicable law or regulation.
13. DISPUTE RESOLUTION AND GOVERNING LAW
The Agreement (and all related non-contractual obligations in relation to it) will be governed by and construed in accordance with the laws of England and Wales (where the Client is located in Europe) and the laws of Delaware, United States (where the Client is located outside of Europe). In the event of any controversy or claim arising out of or relating to this contract, or the breach thereof, the Parties agree first to try and settle the dispute by mediation, administered by the International Centre for Dispute Resolution under its Mediation Rules. If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this contract will be settled by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The seat of arbitration will be in the location where the non-initiating Party of the dispute has an office (at the non-initiating Party’s option where it has multiple offices) and the number of arbitrators will be three. Notwithstanding the foregoing, each Party acknowledges that its breach of the intellectual property or confidentiality provisions under these Terms may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief, as well as such further equitable relief as may be granted by a court of competent jurisdiction.
14. MISCELLANEOUS
14.1 Publicity. IG may use Client’s name or logo on IG’s website and in any of IG’s published customer lists.
14.2 Notices. Notices sent to either Party will be effective when delivered in person or by email: (a) 1 day after being sent by overnight courier; (b) 2 days after being sent by first class mail postage prepaid; or (c) if sent by email, immediately after being received by the other Party’s server. Notices must be in writing and sent to the respective email or postal address as set out in the relevant Order. A Party may change its contact information by giving notice of such change to the other Party.
14.3 Independent Contractors. The Parties’ relationship to one another is that of an independent contractor, and neither Party is an agent of the other.
14.4 Waiver and Severability. No delay or omission by either Party to exercise any right or remedy provided for by law or under the Agreement will operate to waive, limit or otherwise affect that right or remedy. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
14.5 Assignment. Client may not assign or transfer the Agreement to any third party without IG’s prior written consent, except where the third-party controls, is controlled by, or is under common control with you. IG may assign or transfer the Agreement or any rights or obligations hereunder to any third party without Client’s consent. Any assignment or transfer in violation of this section will be void, and the terms of the Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.
14.6 Force Majeure. IG is not liable for delay in the performance of its duties, obligations, or responsibilities hereunder due to an event which is beyond IG’s reasonable control, such as strikes, blockade, war, mobilisation, pandemic, epidemic, natural disaster, refusal of licence by government or other stipulations or restrictions by the authorities, internet service failures, delays or availability issues (including downtime or service outages) or any other cause beyond the reasonable control of IG (“Force Majeure Event”). Notwithstanding the foregoing, a Force Majeure Event does not extinguish Client’s obligations to pay the applicable Fees hereunder.
14.7 Entire Agreement and Order of Precedence. This Agreement constitutes the entire agreement between the Parties regarding the IG Offering, and supersedes any other prior oral or written understandings and agreements of the Parties regarding the IG Offering, and any other agreements prior to or entered into hereafter that is not explicitly referenced in or incorporated into this Agreement. Where there are any direct and irreconcilable conflicts between the provisions of such documents, the following order of precedence will govern: (a) Order Form, but solely for the scope covered under such Order form; (b) a Schedule, but solely for the scope covered under such Schedule; and (c) these Terms.
14.8 Modifications and Amendments. IG has the right to modify these Terms at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the IG Offering by posting the modified terms or changes here at IG will provide Client with notice of any material changes via email at the email address linked to Client’s Account, by posting on Client’s Account, or through other reasonable means. The modifications will come into effect 30 days after IG posts the changes. Client’s continued use of the IG Offering more than 30 days after IG publishes any such changes constitutes Client’s acceptance of the terms of the modified Terms; provided however, for any modifications that have a material impact on the Client, Client may send a notice of objection to the modification ("Objection Notice") in writing (email to suffice) within such 30 day period, and Parties will make good faith efforts to find mutually agreeable terms related to the proposed modification and enter into a written amendment signed by both Parties reflecting the mutually agreed upon terms. Where Parties are unable to find mutually agreeable terms and enter into said amendment within 45 days from Client’s Objection Notice despite both Parties' good faith efforts, either Party may terminate this Agreement by written notice. Client can access a copy of the current Terms on IG’s website at any time. Client can find out when the Terms were last changed by checking the “Last Updated” date at the top of the Terms and Conditions. Except as stated above, no amendment to an Order or these Terms will be valid unless such amendment is made in writing and is signed by the authorised representatives of both Parties.
Last Updated: 19 June 2024 Version 1.0