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Global dataroom agreement

TERMS AND CONDITIONS

These Terms and Conditions, together with the Service Levels & IT Security Controls Policy, the GDPR Provisions and the fully executed Order Form, shall constitute the Dataroom Agreement (this “Agreement”), between the Customer as identified on the Order Form (“Customer”) and HighQ as identified on the Order Form, each a “party” and together the “parties”.

The Effective Date of this Agreement is the date set forth on the Order Form. Any additional Order Forms executed after the Effective Date shall be incorporated herein by reference and governed by this Agreement. The Customer is responsible for reviewing this Agreement prior to executing an Order Form.  By executing an Order Form, or accessing or using the Services, the Customer confirms that it accepts the terms and conditions of this Agreement.

The rights and obligations of the parties set out in any executed Order Form shall be governed by this Agreement. In the event of any inconsistency between a provision of any Order Form and a provision of this Agreement, the provision of the relevant Order Form shall prevail solely with respect to resolving any conflict. For the avoidance of doubt, the order of precedence shall be: (1) the Order Form, (2) this Agreement, and (3) the Documentation.

1. Definitions.

1.1     “Affiliate” means with respect to any entity, an entity who directly or indirectly, has the power to Control, whether through ownership of (a) more than fifty percent of the voting equity or (b) more than fifty percent of an interest in a joint venture in which either parties Control over the joint venture is set forth in writing, and in each case, for as long as such Control exists. “Control” and its correlative terms means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entities, whether through ownership of voting securities, as trustee or executor, as general partner or managing member, by contract or otherwise.

1.2       “Applicable Laws” means any and all applicable federal, state, local and foreign laws, statutes, ordinances, rules, regulations and directives of any applicable jurisdiction.

1.3       “Authorized Users” means those End Users that are named employees of, and authorized individuals who provide services to, Customer and its Permitted Affiliates to whom Customer through its Dataroom Site Admins has provided a log in identification to access the Dataroom on behalf of Customer.

1.4       “Confidential Information” is defined in Section 7.1

1.5       “Customer Data” is defined in Section 8.1.

1.7       “Dataroom Site Admins” means those End Users designated by Customer or other Dataroom Site Admins to have the authority to act as administrators of Customer’s use of the Services.

1.8       “Designated External Users” means those End Users external to Customer, who are invited by Dataroom Site Admins to access the Dataroom in accordance with the permission granted by the Dataroom Site Admins, which permission may not be greater than those held by such Dataroom Site Admins;

1.9       “Documentation” means the instructional, operating or user manuals that HighQ provides to Customer in any form, including electronic, relating to the operation of the Dataroom.

1.10    “End User(s)” means any persons (including without limitation employees and advisors of Customer or any third party) authorized from time to time by Customer pursuant to methods directed by HighQ, to access, process, store and/or communicate End User Files through Datarooms.

1.12    “Fees” is defined in Section 4.1.

1.13    “Force Majeure” means any cause beyond a party’s control, as a result of which such party is unable to perform its obligations under this Agreement. Such causes include but are not limited to acts of God, labor conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility failures, industry-wide shortages of labor or material, or natural disasters.

1.14    “Modified Software or Services” means any software products or services derived from the Dataroom or developed by HighQ Customer to operate in conjunction with, or improve the operational functionality or use of, the Dataroom.

1.15    “Order Form” is the portion of this Agreement that is executed by both parties and identifies the Dataroom, the Term, Fees and other agreed upon terms of this Agreement.

1.16    “Permitted Affiliate” means any current or future Affiliate of Customer for as long as such entity constitutes an Affiliate as defined herein.

1.17    “Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.

1.18    “Services” means collectively all HighQ Datarooms, HighQ web site features, client-side scripts and code, application programming interfaces, systems, support, additional services, and all related materials and documentation, provided by or on behalf of HighQ to Customer pursuant to this Agreement.”

1.19    “Subcontractor” is defined in Section 11.10.

1.20    “Term” is defined in Section 5.1.

2. Rights and Restrictions.

2.1     Rights. HighQ hereby grants to Customer, exercisable by and through the Dataroom Site Admins and Authorized Users, a non-exclusive, royalty-free, irrevocable, non-transferable and non-sublicensable (except, in each case, as provided herein), limited right and authorisation during the Term, to: (a) access and use the Dataroom; (b) generate, print, copy, upload, download, store and otherwise Process all Customer Data; (c) prepare, reproduce, print, download and use the Documentation, all in accordance with the limitations set forth on the Order Form and (d) exercise the rights set forth in this Agreement. Customer is further granted a limited, non-exclusive, royalty-free, non-transferable and non-sublicensable right to use such client-side code and scripts as are served by HighQ to Dataroom Site Admins and Authorised Users through the provision of the Services solely for the purpose of exercising, and co-terminous with, the foregoing rights. Such licence is the sole software licence contained in this Agreement, and Customer obtains no software licence to any server-side code used to provide the Services.

2.2     Restrictions. Customer shall not: (a) rent, lease, lend, sell, or otherwise make the Dataroom available to any third party, except as expressly permitted by this Agreement or (b) use or authorize the use of the Dataroom, the Services or Documentation in any manner not permitted hereby or for any purpose that is unlawful under applicable law and always subject to Clause 6.

2.3       Dataroom Administration. HighQ will provide Customer with one or more initial passwords for Customer’s Dataroom Site Admins to access and use each Dataroom and to permit other End Users to access and use such Dataroom. Customer authorizes HighQ to act on any instructions from Dataroom Site Admins. Only those Dataroom Site Admins may contact HighQ directly with support questions. Customer acknowledges its Dataroom Site Admins shall be authorized on Customer’s behalf, among other things, to appoint and remove other Dataroom Site Admins, create and open Datarooms, permit any person to upload End User Files to Datarooms, and manage each End User’s access to End User Files. It is Customer’s sole responsibility to keep all Dataroom passwords within the direct or indirect possession or control of Customer’s End Users and Dataroom Site Admins, confidential and secure from unauthorized use.

2.4     Designated External Users. Dataroom Site Admins may permit Designated External Users to access and use the Dataroom. Designated External Users may only access the Dataroom for as long as such permission is granted by the Dataroom Site Admin and shall be subject to the same restrictions applicable to Dataroom Site Admins and Authorized Users. Designated External Users may not exercise any rights granted to Customer, its Permitted Affiliates, its Datroom Site Admins or the Authorized Users other than the right of access to and use of the Dataroom. Customer and its Permitted Affiliates shall be responsible for all End Users’ compliance with the terms hereof.

3. Scope of Services.

3.1     General. During the Term, HighQ shall, in accordance with all Terms and Conditions set forth in the Order Form and this Agreement, provide to Customer and its Permitted Affiliates maintenance and support of the Dataroom in order to provide remote electronic access and use of the Dataroom by the Customer, its Permitted Affiliates and all End Users; and if applicable, any such other  additional services mutually agreed to by the parties and set forth in an Order Form executed by both parties . HighQ shall perform the Services (a) in accordance with (i) this Agreement, (ii) good industry practice, and (iii) with all Applicable Laws; and (b) with reasonable skill and care.

3.2       Customer Environment. Customer shall obtain and maintain, at its own expense, such hardware, software and Internet connectivity (“Equipment”) required for Customer to access and use the Services. HighQ shall not be responsible for any problem, error or malfunction relating to the Services resulting from the performance or failure of Equipment, the failure or disruption of any telecommunications service, internet connection, internet service provider, or any other third-party communications provider, force majeure, or any other failure or problem not attributable to HighQ or its subcontractors (“Technical Problems”). Furthermore, HighQ will not be liable to Customer under the Agreement to the extent such liability arises as a consequence of (i) a breach by Customer of this Agreement; or (ii) any act or omission of HighQ undertaken on the instruction of Customer or any Dataroom Site Admin.

4. Fees and Expenses.

4.1     Fees. In full consideration of the Services provided and the rights granted hereunder Customer shall pay HighQ the fees and other charges described herein and as set forth on the Order Form, which shall include the one time minimum fee for the initial set up of the Dataroom as set forth on the Order Form (“the Minimum Fee”, collectively the “Fees”). Customer shall also pay reimbursable expenses expressly specified in an applicable Order Form.

(a)       The Fees will entitle Customer to a certain usage limit as set forth on an Order Form. If, at any time during the Term, Customer exceeds the usage limits set forth in the Order Form, additional fees will be payable by Customer to HighQ, according to the pricing schedule set forth on the Order Form. Increased usage limits may be acquired only in prescribed increments as set forth on the Order Form.

(b)      HighQ may charge Customer separately for services not specified in the Order Form, provided that Customer has approved any such additional services and related charges in advance in writing.

(c)       Fees are not refundable (except as otherwise expressly provided in Section 5.5 and Section 10.1 below).

4.2     Invoices and Payment Terms. The Minimum Fee is payable upon the Effective Date.   All other Fees, except for amounts disputed by Customer and without prejudice to HighQ’s right under section 4.3, shall be payable within 30 days of receipt of an invoice. Fees shall be deemed undisputed unless Customer notifies HighQ in writing within 30 days of the date of the applicable invoice, describing in reasonable detail the nature of the dispute, pays all undisputed amounts timely and cooperates in good faith to resolve such dispute as promptly as practical. If any undisputed amount is unpaid by more than 30 days, Customer may be subject to a finance charge payable to HighQ of the lesser of 4% above the Bank of England’s base rate or the maximum rate allowable per applicable law on all such past due amounts. HighQ shall have no obligation to provide Services if and for so long as any undisputed fee is delinquent. If any undisputed amount is unpaid by more than 45 days, HighQ may remove Customer’s access to the Dataroom, cancel the Services and deactivate Customer’s account.

4.3     The parties agree that HighQ reserves the right, at its discretion, to request Customer to pay any Fees in advance before the commencement of the Term. If Customer fails to pay such Fees within 10 days of HighQ’s request, HighQ shall have no obligation to provide the Services.

4.4       Payment and Collection of Applicable Taxes. All fees set forth in this Agreement are exclusive of applicable taxes and duties, including VAT, GST and/or applicable sales or use tax. The Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any tax unless required by law.  If any such withholding or deduction is required, the Customer shall pay to HighQ such additional amount as will ensure that HighQ receives the same total amount that it would have received if no such withholding or deduction had been required to be made. Customer will provide HighQ with any information HighQ may reasonably request in order to determine whether HighQ is obligated to collect VAT, GST, sales or use tax from Customer, including Customer’s VAT, GST or taxpayer identification number. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing HighQ with legally sufficient tax exemption certificates or other comparable documentation for each taxing jurisdiction. HighQ will apply the tax exemption certificates or other documents to charges under Customer’s account occurring after the date HighQ receives the tax exemption certificates or other comparable documents, and shall have no obligation to recognize any tax exemption for any period before it received a tax exemption certificate or other comparable document. If HighQ is required by law to collect any taxes, HighQ will invoice Customer and Customer will pay HighQ any additional amounts necessary to ensure that the net amount that HighQ receives, after payment of any taxes, equals the amount HighQ would have received if no tax had been required.

5. Term and Termination.

5.1     Term. The initial term of this Agreement will commence as of the Effective Date and will continue in effect until terminated (i) in accordance with the rest of this section 5, (ii) by written agreement of the parties,  (iii) by delivery of written notice of termination by either party to the other after completion of performance or termination of the services governed by this Agreement in accordance with their terms (the “Term”). Except as otherwise expressly agreed between the parties, upon termination of this Agreement, HighQ’s Services shall cease, and Customer will immediately discontinue use of any Dataroom provided hereunder.

5.2     Early Termination. Either party may terminate this Agreement, by written notice to the other party effective as of the date specified in such notice, if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after the breaching party received written notice thereof.

5.3     Termination for Insolvency. Either party may terminate this Agreement immediately, upon written notice to the other party, (a) if the other party applies for, or consents to, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (b) upon the other party ceasing to conduct business, becoming or being declared by a federal bankruptcy court or any other court of competent jurisdiction to be insolvent or bankrupt, or being the subject of any proceeding under the federal bankruptcy code or under any other law relating to relief from creditors generally that is not dismissed within sixty (60) days; (c) upon the appointment of, or application for, a receiver, custodian, trustee or liquidator of the other party or all or any substantial portion of the other party’s business or operations; (d) upon the assignment of all or substantially all the assets of the other party for the benefit of creditors; or (e) upon the other party’s liquidation, dissolution or winding-up.

5.4     Termination for Force Majeure. If any Force Majeure event relied upon by HighQ shall have been continually relied upon for more than 60 successive days by such party, and is continuing, the other party shall be entitled to terminate this Agreement immediately upon written notice to the other party.

5.5     Effect of Termination. Upon and after the termination or expiration of this Agreement for any or no reason (a) all licenses and authorisations granted hereunder will immediately terminate and the respective parties shall cease all activities hereunder; (b) Customer shall pay all amounts due upon such effective date of termination, (c) Customer shall uninstall and return any Dataroom products that have been installed at Customer’s site and, in all cases, comply with HighQ’s instructions as to disabling access to the Dataroom; and (d) Customer shall have not more than 15 days after the effective date of termination to access the Dataroom for the sole purpose of downloading and exporting any Customer Data and for no other purpose.

6. Ownership and Intellectual Property Rights.

6.1     Ownership. Customer acknowledges and agrees that HighQ, alone and together with its Affiliates, own the entire right, title and interest in and to the Dataroom, Modified Software and Services, if any, and Documentation and all portions thereof, including all derivatives thereof, together with all proprietary rights relating thereto, including all copyrights, patent and trade secret rights, as well as changes or enhancements thereto. Customer further acknowledges that the right, title and interest in any third party software products embedded in the Dataroom or identified on an Order Form, reside with the licensors thereof. Customer will not challenge the ownership or rights in the Dataroom or any such third party software products.. HighQ reserves all rights not expressly granted herein. Customer shall undertake no action that will interfere with or diminish the right, title or interest of HighQ or its Affiliates in their trademarks or tradenames or any of their rights under patent, trademark or copyright laws.

6.2       Ownership and End User Files. Customer acknowledges that Datarooms are intended to hold secondary copies of End User Files and not to maintain master or original documents. Customer acknowledges and agrees that HighQ shall not be responsible for the content of End User Files or the modification, use or publication of End User Files by any End User or third party (other than HighQ’s agents and subcontractors). HighQ shall not be responsible for the content, accuracy or completeness of any End User File provided by Customer and obtained by an End User from a Dataroom.

6.3     Restrictions. Without limiting the foregoing, the Dataroom may not be used (a) in a manner that would substitute for a license, authorisation or purchase of any portion of the Dataroom by a third party, (b) for service bureau activities, (c) for any resell activities by the Customer or any End User, or (d) for the purpose of designing, developing, modifying, or improving third party software or products. Customer may not, and may not permit any of its Affiliates or any End Users to (i) sell, resell, license, sublicense, rent, lease, lend, transfer or distribute copies of the Dataroom to, or otherwise permit use or access by, any third party or use such Dataroom to provide any paid or unpaid services on an outsourced basis or otherwise to any third party; (ii) cause or permit the reverse engineering, translation, disassembly or decompilation of the Dataroom or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Dataroom or any part thereof; (iii) hide, remove, tamper, amend, alter, obscure or in any manner interfere with any proprietary rights notices contained on or within the Dataroom or Documentation; or (iv) remove, modify or alter any copyright, trademark or patent notice from any part of the Dataroom, Documentation or any materials made available by or on behalf of HighQ.

7. Confidentiality and Information Security Requirements.

7.1     Non-Disclosure. Each party agrees to regard and preserve as confidential all information related to the business and activities of the other party or such party’s clients or vendors, which may be obtained by such party from any source or may be developed as a result of this Agreement, including financial and business information, strategy, trade secrets, know-how, technical information, specifications, software products and methodologies, including source code, object code and tools associated therewith, algorithms, graphics, designs, past, present and future operations, partner, client and supplier identities, and other non-public information, whether tangible, intangible, visual, electronic or otherwise, together with notes, analysis, compilations, studies and/or other documents prepared by a party, its directors, officers, employees, agents and representatives based upon, containing or otherwise reflecting such information (“Confidential Information”). For the avoidance of doubt, the parties acknowledge and agree that any and all Customer Data shall be deemed Confidential Information of Customer. Each party agrees to hold the Confidential Information of the other in trust and confidence and shall not disclose such information to any person, firm or enterprise, or use, directly or indirectly, any such information for its own benefit or the benefit of any other party. Even where disclosure is permitted, each party agrees to limit access to and disclosure of the other party’s Confidential Information to its employees, representatives, Dataroom Site Admins, Authorized Users and Subcontractors on a “need to know” basis only. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information pursuant to applicable law or regulation or compulsion of proper judicial or other legal process; provided, however, if permitted by applicable law, the disclosing party shall provide prompt notice of the same prior to such required disclosure such that the other party may seek a protective order or other appropriate remedy to safeguard, restrict or limit the disclosure of such Confidential Information.

7.2     This Agreement shall supersede any confidentiality or non-disclosure agreement entered into by the parties.

7.3     Exclusions. Information shall not be considered “Confidential Information” hereunder to the extent, but only to the extent that, such information (a) is or becomes publicly available through no fault, default or breach of or by the receiving party, (b) is or was rightfully acquired by the receiving party from an independent third party without restriction or obligation of confidentiality and without breach of any agreement or obligation or (c) is or was independently developed by the receiving party without use of Confidential Information of the other party.

7.4     Recipients and Equitable Relief. Each party shall, in advance, by agreement, instruction or otherwise, ensure that each individual who obtains or is in a position to obtain Confidential Information of the other party, understands and has agreed to comply with the obligations in this Section 7. Further, in the event of a breach or threatened breach of either party’s obligations in this Section 7, the other party will suffer immediate and irreparable harm for which money damages may be difficult to calculate or provide inadequate compensation. Accordingly, each party will be entitled to seek an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Section 7; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either party from seeking or obtaining any other remedy under this Agreement.

7.5     Information Security Requirements. The parties hereby agree to comply with the standard information security requirements, and procedures described on the Service Levels and IT Security Controls Policy, which may be updated by HighQ from time to time.

8. Customer Data and General Data Protection Provisions.

8.1     Scope. For purposes hereof, “Customer Data” means any and all information, data, materials, works, expressions or other content including any PII that is uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Customer or any Dataroom Site Admin or Authorized User for Processing by or through the Services. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data does not include any and all information reflecting the access to and use of the Hosted Services by or on behalf of Customer or any Dataroom Site Admin or Authorized User.

8.2     Ownership of Customer Data. As between Customer and HighQ, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property and other rights relating thereto, and all Customer Data is and will be deemed and remain the Confidential Information of Customer. Subject to the Terms and Conditions of this Agreement, Customer hereby grants HighQ a limited, revocable, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable license to Process the Customer Data as necessary to provide the Services for Customer’s benefit as provided in this Agreement.

8.3     Brand License. Customer hereby grants to HighQ a limited, revocable, non-exclusive, royalty-free and non-transferable license to use such of Customer’s trademarks and logos solely as Customer may request in order for the Dataroom to be branded with Customer’s distinguishing colors and trade dress.

8.4     General Data Protection Provisions. From 25 May 2018, the General Data Protection Regulation Provisions (“GDPR Provisions”) shall form part of this Agreement. If there is any conflict or inconsistency between the GDPR Provisions and other terms of the Agreement, the GDPR Provisions will take precedence.

9. Representations, Warranties and Covenants.

(a)       Customer represents, warrants and covenants that (i) it has the full right, power and authority to enter into and perform the acts required of it under this Agreement; (ii) the execution and delivery of this Agreement and the performance of its obligations do not conflict with, or constitute a default under any covenant, agreement, judgment, law, order or agreement to which it is subject; (iii) this Agreement constitutes the legal, valid and binding obligation of either party when executed and delivered; and (iv) it has obtained or shall obtain and maintain all rights, licenses, consents and authorizations necessary to perform its obligations and adhere to all of the Terms and Conditions set forth in this Agreement;

(b)      CUSTOMER ACKNOWLEDGES AND AGREES THAT TECHNICAL PROBLEMS MAY PREVENT HIGHQ FROM PROVIDING ALL OR PART OF THE SERVICES. IN NO EVENT SHALL HIGHQ BE LIABLE HEREUNDER TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSS RESULTING FROM TECHNICAL PROBLEMS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT FEATURES OF THE HIGHQ SERVICE DESIGNED TO RESTRICT ACCESS TO OR USE OF END USER FILES CANNOT PREVENT MANUAL COPYING OF DISPLAYED INFORMATION AND MAY NOT PREVENT ELECTRONIC OR DIGITAL CAPTURE OF DOCUMENT CONTENTS BY END USERS USING THIRD PARTY SOFTWARE DESIGNED TO CIRCUMVENT SUCH SYSTEM FEATURES. EXCEPT AS SET FORTH IN THIS SECTION 8, HIGHQ MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF.

10. Indemnification and Limitations.

10.1    Indemnity. Customer will indemnify, and defend at its own expense, HighQ from and against any and all direct costs, damages, expenses, liability, suits, claims and proceedings (including reasonable attorneys’ and professional fees) incurred by HighQ as a result of any such suit or action arising from or related to Customer Data and End User File added to the Dataroom that violates or is alleged to violate any civil or criminal law or regulation, or that infringes or is alleged to infringe any Intellectual Property Rights of any third party.

10.2   DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. HIGHQ MAKES NO WARRANTY THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR AVAILABLE AT ALL TIMES, NOR DOES HIGHQ WARRANT THE COMPATIBILITY OR OPERATION OF THE SERVICES WITH ALL HARDWARE AND SOFTWARE CONFIGURATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT TECHNICAL PROBLEMS MAY PREVENT HIGHQ FROM PROVIDING ALL OR PART OF THE SERVICES. IN NO EVENT SHALL HIGHQ BE LIABLE HEREUNDER TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSS RESULTING FROM TECHNICAL PROBLEMS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT FEATURES OF THE HIGHQ SERVICE DESIGNED TO RESTRICT ACCESS TO OR USE OF END USER FILES CANNOT PREVENT MANUAL COPYING OF DISPLAYED INFORMATION AND MAY NOT PREVENT ELECTRONIC OR DIGITAL CAPTURE OF DOCUMENT CONTENTS BY AUTHORIZED USERS USING THIRD PARTY SOFTWARE DESIGNED TO CIRCUMVENT SUCH SYSTEM FEATURES. HIGHQ MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF. HIGHQ DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF, CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION BY HIGHQ OTHER THAN THOSE CONTAINED IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, HIGHQ DOES NOT WARRANT THAT THE SERVICES AND DATAROOM, INCLUDING THIRD PARTY SOFTWARE PRODUCTS, OR ANY MODIFIED SOFTWARE, WILL MEET THE CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS SELECTED BY CUSTOMER. CUSTOMER UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THE AGREEMENT AND THAT HIGHQ WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.

10.3    Limitations. All exclusions and limitations in this Agreement, and/or any Order Forms shall only apply so far as permitted by law and in particular nothing shall exclude or restrict liability: (i) for death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment, or its agents, acting in the furtherance of their duties, (ii) for any breach of any obligations implied by Section 2 of the Supply of Goods and Services Act 1982; (iii) to the extent prohibited by the Consumer Protection Act 1987.

10.4    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL HIGHQ BE LIABLE TO THE CUSTOMER OR ANY PARTY CLAIMING THROUGH OR UNDER THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS DAMAGE OR CORRUPTION OF DATA OR SOFTWARE, EQUIPMENT DOWNTIME, ERRORS, INTERUPTIONS OR DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR USE OF THE DATAROOM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY SUCH DAMAGES PAYABLE BY HIGHQ TO CUSTOMER HEREUNDER EXCEED THE FEES PAID BY CUSTOMER TO HIGHQ UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE CAUSE OF ACTION AT ISSUE. FURTHER, IN NO EVENT SHALL HIGHQ BE LIABLE HEREUNDER TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSS RESULTING FROM TECHNICAL PROBLEMS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT FEATURES OF THE SERVICES AND DATAROOM DESIGNED TO RESTRICT ACCESS TO OR USE OF FILES CANNOT PREVENT MANUAL COPYING OF DISPLAYED INFORMATION AND MAY NOT PREVENT ELECTRONIC OR DIGITAL CAPTURE OF DOCUMENT CONTENTS BY DATAROOM SITE ADMINS AUTHORIZED USERS USING THIRD PARTY SOFTWARE DESIGNED TO CIRCUMVENT SUCH SYSTEM FEATURES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THIS AGREEMENT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. Miscellaneous.

11.1   Assignment. Customer shall not assign, transfer, convey or subcontract this Agreement, or any rights or obligations hereunder, to any other party without the HighQ’s prior written consent and any attempt to do so shall be null and void ab initio. This Agreement will be binding upon, and enforceable by, and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.

11.2   Relationship of Parties. HighQ is an independent contractor and each party’s personnel are not employees or agents of the other party for federal, state, local or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement will be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, or constitute one party an agent of the other party.

11.3   Notices. All notices and other communications required or permitted under this Agreement must be in writing and delivered personally, mailed via first class mail, postage prepaid, via an internationally recognized overnight courier, or via email (with confirmation of receipt) to the applicable party at the address provided, unless, by notice, a party changes or supplements address for giving notice. All notices will be deemed given on the date personally delivered or when placed in the mail as specified. All notices to HighQ should be sent by mail to 55 King William Street, London, EC4R 9AD and by email to: legal@highq.com.

11.4     Publicity. HighQ shall be entitled to use the name, service or trademarks, logos or otherwise identify or refer to Customer in any press releases, publications, reports, studies, publicity, marketing or promotional material.

11.5    Interpretation and Construction. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

11.6     Modification; Waiver; Severability. HighQ may modify the terms of this Agreement at any time by posting a revised version on this website. The modified terms will become effective upon posting. By continuing to use the Services after the date of modifications to this Agreement, the Customer agrees to be bound by the modified terms. The last modified date is stated at the end of this Agreement. No failure or delay by either party to exercise any right or enforce any obligation will impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement will be unimpaired and remain in full force and effect.

11.7   Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive shall survive the cancellation, expiration or termination of this Agreement.

11.8    Entire Agreement. This Agreement, together with the Order Form, constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof.

11.9     Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed a single instrument. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

11.10  Subcontracting. Customer acknowledges that in the course of performing its obligations hereunder, HighQ may desire or require the use of goods, services and assistance of subcontractors and other suppliers (each, a “Subcontractor”). HighQ may use Subcontractors as long as HighQ uses all commercially reasonable efforts to ensure that each Subcontractor complies with all relevant terms of this Agreement, including all provisions relating to Customer Data or other Confidential Information of Customer.

11.11     Force Majeure. Neither party shall be liable for any delay or failure to carry out its obligations under this Agreement caused by Force Majeure, provided that it promptly gives written notice of the occurrence of the Force Majeure relied on to the other party and it uses all reasonable endeavors to remove or avoid such Force Majeure as promptly as practicable.

11.12    Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claim) shall be governed by, and construed in accordance with, the domestic laws of England and Wales without giving effect to any choice of law or conflict of laws provision or rule (whether of England and Wales or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than England and Wales.   Subject to the following section, each party irrevocably submits to the sole and exclusive jurisdiction of any court sitting in England and Wales in any action or proceeding arising out or relating to this Agreement its subject matter or formation (including non-contractual disputes or claims) and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Provisions of the United Nations Conventions on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement.

11.13   Dispute Resolution. Any claim or controversy related to or arising out of this Agreement, whether in contract or in tort, other than matters pertaining to proprietary information, proprietary rights, or payment disputes (“Dispute”), will be resolved according to the following process, which either Party may start by delivering a written notice to the other Party describing the Dispute and the amount involved (“Demand“). If the Dispute remains unresolved after ten 10 business days after receipt of a Demand, each Party shall identify a designated representative and a senior manager in writing to the other Party, and the designated representatives from each Party will meet at a mutually agreed upon time and place and use commercially reasonable efforts to try to resolve the Dispute. If the Dispute remains unresolved for 10 business days after such meeting, either Party may escalate the Dispute by sending notice to the other Party’s senior manager. If the senior managers from both Parties cannot resolve the Dispute within 10 business days after receipt of such written notice, either Party may pursue any other available remedies. The Parties shall use commercially reasonable efforts to attempt to settle any claim or controversy between themselves (acting in good faith) within 1 calendar month of notice of the claim or controversy being given.  The Parties shall conduct such negotiation on a confidential basis.

11.14  Compliance with Laws. Customer acknowledges and agrees that access to and use of the Services may be subject to applicable foreign, federal, state and/or local laws, ordinances, rules, and regulations, including without limitation, the rules and regulations of foreign, federal, state, and/or local agencies. Customer agrees to comply with all laws, ordinances, rules, regulations, and/or requirements imposed by any government or regulatory authority on its use, transmission, and disclosure of any data or information via the Services. Customer also represents and warrants that any data, media, or other content disseminated through the Services does not violate the intellectual property rights or other rights of any third party.

11.15  Exclusion of Third Party Rights. Unless expressly stated otherwise in this Agreement, nothing in this Agreement confers or is intended to confer any rights on any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

Last Updated 20 June 2018