MAYA DATA PRIVACY LIMITED TERMS AND CONDITIONS OF USE
PLEASE READ CAREFULLY BEFORE ACCESSING ANY SOFTWARE FROM THIS WEBSITE:
These terms and conditions form a legal agreement (the “Agreement”) between you (the “Customer”, “you” or “your”) and Maya Data Privacy Limited (“Maya Data Privacy” , “we”, “our” or “us”), a private company limited by shares with registration number 721352, incorporated and registered in Ireland, whose current registered office is at 38 Cuil Duin Green, Citywest, Dublin, D24 Y51W, Ireland, and includes any future registered address of Maya Data Privacy , to grant you access and use of the Services (as defined below) subject to the terms and conditions of this Agreement.
We licence use of the Services to you on the basis of this Agreement. We do not sell the Services to you. We remain the owners of the Services at all times.
IMPORTANT NOTICE TO ALL CUSTOMERS / USERS:
You should print a copy of this Agreement for future reference.
Agreed terms
1.1 The definitions and rules of interpretation in this Clause 1 apply in this Agreement.
“Affiliate”: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
“Authorised Users”: any wholly-owned subsidiary of the Customer and those employees, agents and independent contractors of the Customer (or its wholly-owned subsidiary) who are authorised by Maya Data Privacy (whether by the issuance of a Licence Key or otherwise) to use the Services in accordance with the entitlement granted by the relevant User Subscription purchased by the Customer.
“Business Day”: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
“Charges”: the following amounts, as set out on the Maya Data Privacy website or in the relevant Purchase Order(s) (as applicable), being the fees payable by the Customer to Maya Data Privacy for the Services:
(a) the Subscription Fee; and
(b) such amount(s) as may be agreed in writing between the Customer and Maya Data Privacy from time to time.
“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 12.
“Customer Data”: the data inputted by the Authorised Users on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
“Customer Personal Data”: any personal data that is processed by Maya Data Privacy on behalf of the Customer in relation to this Agreement.
“Data Protection Legislation”: all applicable laws and regulations relating to the processing of personal data and privacy including, without limitation, the Irish Data Protection Acts 1988 and 2003, the Irish Data Protection Act 2018, the General Data Protection Regulation 2016/679 (the “GDPR”) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “personal data”, “controller”, “processor”, “data subject”, “personal data breach” and “processing” shall have the meanings given to those terms in such data protection laws and regulations.
“Data Protection Schedule”: the data protection schedule in the form provided by Maya Daya Privacy to the Customer.
"Documentation": the most recent documentation for the Software produced by Maya Data Privacy and made available online by Maya Data Privacy to the Customer.
“Effective Date”: the date identified as the effective date of this Agreement in the Purchase Order (or such other date as agreed in writing between the Customer and Maya Data Privacy).
“Heightened Cybersecurity Requirements”: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148) and the Commission Implementing Regulation ((EU) 2018/151) as amended or updated from time to time.
“Initial Subscription Term”: such period starting on the Effective Date, as set out in the Customer’s Purchase Order;
“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Licence Key”: a unique key provided by Maya Data Privacy on payment of the Charges by the Customer for the Customer to access the Services.
“Maintenance Releases”: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“Maya Data Privacy Personal Data”: any personal data which Maya Data Privacy processes in connection with this Agreement, in the capacity of a controller.
“New Version”: any new version of the Software which from time to time is publicly marketed and offered for purchase by Maya Data Privacy 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.
“Normal Business Hours”: 9.00 am to 5.30 pm local Irish time, each Business Day.
"Purchase Order”: an ordering document or online order entered into between Maya Data Privacy and the Customer from time to time describing the Services to be provided by Maya Data Privacy to the Customer under this Agreement, any applicable Charges, estimated timetable (if any), responsibilities of each of the parties, each party’s contact details and any other relevant information for, or in connection with, the provision of the Services by Maya Data Privacy in accordance with this Agreement.
“Renewal Period”: the period described in Clause 15.1.
“Services”: any services that Maya Data Privacy provides to the Customer, or has an obligation to provide to the Customer, under this Agreement and/or pursuant to a Purchase Order, which shall include but not be limited to the grant of access to and right to use the Software.
“Software”: the software application known as “AppSafe” or “File Safe” (as applicable based on the User Subscription purchased by the Customer) as specified in the Documentation, made available by Maya Data Privacy to the Customer under the terms of this Agreement, as ordered by the Customer through the Customer’s Purchase Order.
“Subscription Fee”: the monthly or annual subscription fee payable by the Customer to Maya Data Privacy for the purchase of a User Subscription, as published on https://mayadataprivacy.eu from time to time or otherwise agreed in writing between Maya Data Privacy and the Customer.
“Subscription Term”: has the meaning given in Clause 15.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
“User Subscription”: the user subscription plan purchased by the Customer pursuant to Clause 9.1 which entitle the Customer’s Authorised Users to access and use the Services in accordance with this Agreement.
“Virus”: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Warranty Period”: has the meaning given in Clause 7.1.2.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail but not faxes.
1.10 References to Clauses and schedules are to the Clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2 Application of this Agreement
2.1 This Agreement prevails over any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
2.2 In the event of any inconsistency between the terms of this Agreement and any Purchase Order, the following order of precedence shall apply between Maya Data Privacy and the Customer for the purposes of this Agreement:
2.2.1 any Purchase Order; and
2.2.2 this Agreement.
2.3 No addition to, variation of, exclusion or attempted exclusion of any term of this Agreement shall be binding on Maya Data Privacy unless in writing and signed by a duly authorised representative of Maya Data Privacy.
3 Effect of a Purchase Order
3.2 Where the Customer signs a Purchase Order, Clause 3.1 shall not apply and the Customer’s Purchase Order constitutes an offer by the Customer to purchase the Services specified in it under the terms of this Agreement. Accordingly, the execution and return of the acknowledgement copy of the Purchase Order by Maya Data Privacy, or Maya Data Privacy's commencement or execution of any work pursuant to the Purchase Order, shall establish an agreement for the supply and purchase of those Services under the terms of this Agreement. The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Purchase Order shall not govern nor be applicable to this Agreement.
3.3 The Customer may place further orders for Services under this Agreement by submitting separate Purchase Orders.
4.1 Subject to the Customer purchasing the User Subscription in accordance with Clause 9.1, the restrictions set out in this Clause 4 and the other terms and conditions of this Agreement, Maya Data Privacy hereby grants to the Customer a revocable, non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the relevant Authorised Users to use the Services during the Subscription Term. Maya Data Privacy may supply the Customer with a Licence Key or Licence Keys to allow the Customer to utilise each User Subscription purchased.
4.2 In relation to the scope of use of the Services:
4.2.1 For the purposes of Clause 4.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer Data for the normal business purposes of the Customer and the purposes of the User Subscription (which shall not include allowing the use of the Services by, or for the benefit of, any person other than an Authorised User of the Customer); and
4.2.2 Where the Customer has been provided with one or more Licence Keys, the Customer shall record the number and location of all Licence Keys and take steps to prevent unauthorised copying of the Services.
4.3 In relation to the Authorised Users, the Customer undertakes that:
4.3.1 it shall maintain a written, up to date list of current Authorised Users and provide such list to Maya Data Privacy within 5 Business Days of Maya Data Privacy’s written request at any time or times;
4.3.2 upon termination of an Authorised User’s authorisation under this Agreement for any reason, the Customer shall (a) revoke the Authorised User’s access to the Services, (b) remove any such electronic files from the Authorised User’s possession and from all computers, systems and devices to which the Authorised User has access, and (c) remove any paper copies of the Services from the Authorised User’s possession;
4.3.4 if any of the audits referred to in Clause 4.3.3 reveals that any access has been provided to any individual who is not an Authorised User, then without prejudice to Maya Data Privacy other rights, the Customer shall promptly disable such access and Maya Data Privacy shall not provide access to the Services to any such individual;
4.3.5 if any of the audits referred to in Clause 4.3.3 reveals that the Customer has underpaid Charges to Maya Data Privacy, then without prejudice to Maya Data Privacy other rights, the Customer shall pay to Maya Data Privacy an amount equal to the difference between (1) the Charges actually paid to Maya Data Privacy by the Customer, and (2) the Charges that are properly due under this Agreement (the “Unpaid Charges”) within 10 Business Days of the date of the relevant audit. Maya Data Privacy may charge interest on these Unpaid Charges and such interest shall accrue on a daily basis on these Unpaid Charges at an annual rate equal to 4% over the then current base lending rate of the European Central Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment; and
4.3.6 it shall permit Maya Data Privacy to inspect and have access to any premises (and to the computer equipment located there) at or on which the Services is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that Maya Data Privacy provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
4.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
4.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.4.2 facilitates illegal activity;
4.4.3 depicts sexually explicit images;
4.4.4 promotes unlawful violence;
4.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.4.6 is otherwise illegal or causes damage or injury to any person or property,
and Maya Data Privacy reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
4.5 The Customer shall not:
4.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement or Maya Data Privacy from time to time:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
4.5.2 access all or any part of the Services in order to build a service which competes with the Services; or
4.5.3 use, provide or otherwise make available the Services in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person (other than Authorised Users) without prior written consent from Maya Data Privacy; or
4.5.4 without the prior written consent of Maya Data Privacy, allow the Services to become the subject of any charge, lien or encumbrance; or
4.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause 4.
4.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Maya Data Privacy
4.7 The rights provided under this Clause 4 are granted to the Customer only and shall not be considered granted to any holding company of the Customer.
5.1 Maya Data Privacy shall, subject to payment by the Customer of the Charges, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.
5.2 Maya Data Privacy will, as part of the provision of the Services and at no additional cost to the Customer, provide the Customer with technical support services relating to the Customer’s use of the Services during Normal Business Hours. Maya Data Privacy will not provide technical support services relating to any hardware, ancillary software (including but not limited to Excel) or any software merely used in connection with the Services.
5.3 Maya Data Privacy will provide the Customer with all Maintenance Releases generally made available to its customers. Maya Data Privacy warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Services. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
6 Customer Data and Data Protection
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
6.3 In circumstances where Maya Data Privacy processes Customer Data as a processor on behalf of the Customer, the terms of the Data Protection Schedule shall apply between the Customer and Maya Data Privacy. To the extent that any inconsistency arises between the terms of this Agreement and those of the Data Protection Schedule, the terms of the Data Protection Schedule shall prevail.
6.4 Should the determination in Clause 6.3 change, then each party shall work together in good faith to make any changes which are necessary to this Clause 6.
6.5 If any changes or prospective changes to the Data Protection Legislation result or will result in one or both parties not complying with the Data Protection Legislation in relation to processing of personal data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
6.6 Without prejudice to the generality of Clause 6.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful collection and processing of the Maya Data Privacy Personal Data and Customer Personal Data by Maya Data Privacy for the duration and purposes of this Agreement.
6.7 The Customer warrants and undertakes to Maya Data Privacy that:
6.7.1 all data sourced by the Customer for use in connection with the Services, prior to such data being provided to or accessed by Maya Data Privacy for the performance of the Services under this Agreement, comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, data subjects), with the Data Protection Legislation;
6.7.2 all instructions given by it to Maya Data Privacy in respect of personal data shall at all times be in accordance with the Data Protection Legislation;
6.7.3 it is satisfied that Maya Data Privacy’s processing operations are suitable for the purposes for which the Customer proposes to use the Services and engage Maya Data Privacy to process the Customer Personal Data; and
6.7.4 it is satisfied that Maya Data Privacy has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of the Data Protection Legislation.
7 Maya Data Privacy Limited Warranties
7.1 Maya Data Privacy warrants that:
7.1.2 the Services will, when properly used and on an operating system for which it was designed, be free from defects for a period of 90 days from the date of the Customer’s first access to the Services (“Warranty Period”); and
7.1.3 the media on which the Services is delivered under this Agreement will be free from defects.
7.2 If, within the Warranty Period or as soon as reasonably practicable thereafter, the Customer notifies Maya Data Privacy of any defect or fault in the Services in consequence of which it fails to conform to any of the warranties in Clause 7.1, Maya Data Privacy shall, at Maya Data Privacy option, do one of the following:
7.2.1 repair the Services;
7.2.2 replace the Services; or
provided that the Customer makes available all the information that may be necessary to help Maya Data Privacy to remedy the defect or fault, including sufficient information to enable Maya Data Privacy to recreate the defect or fault.
7.3 The warranty in in Clause 7.1.2 does not apply:
7.3.1 If the defect or fault in the Services results from the Customer having altered or modified the Services; and
7.3.2 If the defect or fault in the Services results from the Customer having used the Services in breach of the terms of this Agreement.
7.5 The Customer accepts responsibility for the selection of the Services to achieve its intended results and acknowledges that the Services have not been developed to meet the individual requirements of the Customer.
7.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.1 The Services shall be made available for use solely by the Authorised Users in accordance with the relevant User Subscription(s).
8.2 The Customer shall:
8.2.1 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.2.2 take full responsibility for the content of communications between the Customer and its clients;
8.2.3 take full responsibility for the content of the Customer Data and their input into the Services;
8.2.4 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Maya Data Privacy may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.2.5 ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement. In the case of a potential breach of this Agreement by one or more Authorised User, the Customer shall cooperate with Maya Data Privacy to identify the relevant Authorised User(s) and to remedy any breach;
8.2.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for Maya Data Privacy, its contractors and agents to perform their obligations under this Agreement, including without limitation with regard to the Services;
8.2.7 ensure that its network and systems comply with the relevant specifications provided by Maya Data Privacy from time to time; and
8.2.8 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Maya Data Privacy data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.1 The Customer shall pay the relevant Charges to Maya Data Privacy for the User Subscription in accordance with this Clause 9 and the provisions of the Purchase Order. Maya Data Privacy shall issue an invoice to the Customer for payment of the Charges.
9.2 With regard to the Initial Subscription Term:
9.2.1 subject to Clause 9.2.2, payment of the relevant Charges shall be made online by credit/debit card through the payment link made available by Maya Data Privacy to the Customer prior to download of and/or access to the Services and Maya Data Privacy’s provision of any Licence Key; and
9.2.2 in the event that payment in line with Clause 9.2.1 is deemed by Maya Data Privacy to be impractical, Maya Data Privacy shall, after notifying the Customer, issue an invoice to the Customer for payment of the relevant Charges which the Customer shall pay via bank transfer on or prior to the Effective Date (or such later date as agreed in writing between the Customer and Maya Data Privacy). Subject to Clause 9.3, Maya Data Privacy shall provide access to the Services and, where required by Maya Data Privacy, the relevant Licence Key(s) to the Customer on the Effective Date.
9.3 If the Customer has paid the Charges for the Initial Subscription Term in accordance with Clause 9.2.2:
9.3.1 the Customer must, within 7 days of the Effective Date, provide Maya Data Privacy with proof of transfer of the relevant Charges in a manner satisfactory to Maya Data Privacy; and
9.3.2 the relevant Charges must arrive in such bank account as indicated to the Customer by Maya Data Privacy within 10 days of the Effective Date,
failing which:
9.3.3 Maya Data Privacy shall be entitled to temporarily revoke the licence granted to the Customer under Clause 4.1 and disable the Customer’s access to all or part of the Services, and Maya Data Privacy shall be under no obligation to provide access to the Services while the Charges concerned remain unpaid; and
9.3.4 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the European Central Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.4 With regard to each Renewal Period, subject to Clause 15.1:
9.4.1 if the Customer has paid the Subscription Fee for the Initial Subscription Term in line with Clause 9.2.1, the Customer will be automatically charged the then current Subscription Fee (and any other applicable Charges) on the date of commencement of the relevant Renewal Period using the same payment method as used by the Customer to pay the Charges for the Initial Subscription Term; and
9.4.2 if the Customer has paid for the Subscription Fee for the Initial Subscription Term in line with Clause 9.2.2, unless otherwise agreed between the Customer and Maya Data Privacy, Maya Data Privacy shall invoice the Customer at least 15 days prior to the commencement of the relevant Renewal Period in respect of the Subscription Fee (and any other applicable Charges) due for the relevant Renewal Period. The Customer shall ensure that payment of the relevant Subscription Fee (and any other applicable Charges) has been completed on or prior to the date of commencement of the relevant Renewal Period.
9.5 If Maya Data Privacy has not received payment within 10 days after the date for payment specified in Clause 9.4, and without prejudice to any other rights and remedies of Maya Data Privacy:
9.5.1 Maya Data Privacy may, without liability to the Customer, revoke the licence granted to the Customer under Clause 4.1 and disable the Customer’s access to all or part of the Services, and Maya Data Privacy shall be under no obligation to provide access to the Services while the Subscription Fee concerned (and any other applicable Charges) remain unpaid; and
9.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the European Central Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.6 All amounts and fees stated or referred to in this Agreement:
9.6.1 shall be payable in Euros;
9.6.2 are, save in the circumstances set out at Clause 7.2.3 and subject to Clause 14.4.2, non-cancellable and non-refundable;
9.6.3 are exclusive of value added tax, which shall be added to Maya Data Privacy’s invoice(s) at the appropriate rate.
9.7 Time for payment shall be of the essence of this Agreement.
9.8 All amounts due under this Agreement shall be paid by the Customer to Maya Data Privacy in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Maya Data Privacy may, without prejudice to any other rights it may have, set off any liability of the Customer to Maya Data Privacy against any liability of Maya Data Privacy to the Customer.
9.9 Maya Data Privacy shall be entitled to increase the relevant Charges at the start of each Renewal Period upon 30 days’ prior notice to the Customer and the definition of Charges in Clause 1 shall be deemed to have been amended accordingly.
9.10 Maya Data Privacy may put in place receivables financing arrangements in relation to invoices raised or to be raised. In order to facilitate those arrangements, the Customer hereby irrevocably consents to and authorises the assignment of any receivables paid or payable under this Agreement.
10 Intellectual Property Rights
10.1 The Customer acknowledges that all Intellectual Property Rights in the Services and any Maintenance Releases belong and shall belong to Maya Data Privacy or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Services (including the Software in source code form) other than the right to use them in accordance with the terms of this Agreement.
10.2 Maya Data Privacy confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3 Maya Data Privacy undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Services in accordance with the terms of this Agreement infringes the Irish Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, Clause 10.3 shall not apply where the Claim in question is attributable to possession or use of the Services by the Customer other than in accordance with the terms of this Agreement, use of the Services in combination with any hardware or software not supplied or specified by Maya Data Privacy if the infringement would have been avoided by the use of the Services not so combined, or use of a non-current release of the Services.
10.4 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, Maya Data Privacy’s obligations under Clause 10.3 are conditional on the Customer:
10.4.1 as soon as reasonably practicable, giving written notice of the Claim to Maya Data Privacy, specifying the nature of the Claim in reasonable detail;
10.4.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Maya Data Privacy (such consent not to be unreasonably conditioned, withheld or delayed);
10.4.3 giving Maya Data Privacy and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Maya Data Privacy and its professional advisers to examine them and to take copies (Maya Data Privacy’s expense) for the purpose of assessing the Claim; and
10.4.4 subject to Maya Data Privacy providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Maya Data Privacy may reasonably request to avoid, dispute, compromise or defend the Claim.
10.5 If any Claim is made, or in Maya Data Privacy’s reasonable opinion is likely to be made, against the Customer, Maya Data Privacy may at its sole option and expense:
10.5.2 modify the Services so that it ceases to be infringing;
10.5.3 replace the Services with non-infringing services; or
provided that if Maya Data Privacy modifies or replaces the Services, the modified or replacement Services must comply with the warranties contained in Clause 7.1 and the Customer shall have the same rights in respect thereof as it would have had under those Clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
10.6 This Clause 10 constitutes the Customer's exclusive remedy and Maya Data Privacy’s (including Maya Data Privacy’s employees', agents' and sub-contractors') only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 14.4.
11.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (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.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party's lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
12.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
12.4 Without prejudice to Clause 12.3, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5 The Customer acknowledges that details of the Services constitute Maya Data Privacy’s Confidential Information.
12.6 Maya Data Privacy acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7 Subject to Clause 12.8, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.9 This Clause 12 shall survive termination of this Agreement, however arising.
13.1 The Customer shall defend, indemnify and hold harmless Maya Data Privacy against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
13.1.1 the Customer is given prompt notice of any such claim;
13.1.2 Maya Data Privacy provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
13.1.3 the Customer is given sole authority to defend or settle the claim.
14.1 This Clause 14 sets out the entire financial liability of Maya Data Privacy (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
14.1.1 arising under or in connection with this Agreement;
14.1.2 in respect of any use made by the Customer of the Services or any part of them; and
14.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in this Agreement:
14.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, by the Customer, and for conclusions drawn from such use. Maya Data Privacy shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided by the Customer in connection with the Services or any actions taken by Maya Data Privacy at the Customer's direction;
14.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
14.2.3 the Services are provided to the Customer on an "as is" basis.
14.3 Nothing in this Agreement excludes the liability of Maya Data Privacy:
14.3.1 for death or personal injury caused by Maya Data Privacy’s negligence; or
14.3.2 for fraud or fraudulent misrepresentation; or
14.3.3 any other liability which may not be excluded by law.
14.4 Subject to Clause 14.2 and Clause 14.3:
14.4.1 Maya Data Privacy shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(a) loss of profits, sales, business or revenue; or
(b) loss of business, loss of business opportunity, depletion of goodwill and/or similar losses; or
(c) business interruption; or
(d) loss of anticipated savings; or
(e) loss or corruption of data or information; or
where any of the losses set out in Clauses 14.4.1(a) to 14.4.1(f) are direct or indirect; or
(g) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement,
and,
14.4.2 Maya Data Privacy’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Charges paid by the Customer during the 6 months immediately preceding the date on which the claim arose.
14.5 All dates supplied by Maya Data Privacy for the delivery of the Services shall be treated as approximate only. Maya Data Privacy shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
14.6 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Maya Data Privacy shall have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.
14.7 All references to Maya Data Privacy in this Clause 14 shall, for the purposes of this Clause 14 only, be treated as including all employees, subcontractors and suppliers of Maya Data Privacy and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Clause 14.
15.1 This Agreement shall, unless otherwise terminated as provided in this Clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for the same period as the Initial Subscription Term (each a “Renewal Period”), unless:
15.1.1 at least 10 days prior to the commencement of the next Renewal Period, the Customer notifies Maya Data Privacy of termination, in which case this Agreement shall terminate upon the expiry of the then current Subscription Term; or
15.1.2 otherwise terminated in accordance with the provisions of this Agreement,
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
15.2 Subject to Clause 15.5, either party may terminate this Agreement by giving to the other party at least 10 days' written notice of termination, in which case this Agreement shall terminate upon the expiry of the said notice period.
15.3 Subject to Clause 15.5, without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
15.3.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
15.3.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
15.3.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
15.3.4 the other party suspends, or threatens to suspend, payment of its debts as they fall due or admits inability to pay its debts or suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
15.3.6 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 15.3.5.
15.4 On termination of this Agreement for any reason:
15.4.1 all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
15.4.2 the Customer shall immediately pay to Maya Data Privacy any sums due to Maya Data Privacy under this Agreement;
15.4.3 the Customer shall immediately and permanently delete or remove the Software from all computer equipment in its possession, and immediately destroy or return to Maya Data Privacy (at Maya Data Privacy’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to Maya Data Privacy that it has done so;
15.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
15.4.5 the following Clauses shall continue in force: Clause 1 (Interpretation), Clause 11 (Export), Clause 12 (Confidentiality) Clause 14 (Limitation of liability) and Clause 17.9 (Governing law and Jurisdiction).
15.5 Save in the circumstances set out at Clause 7.2.3, early termination of this Agreement, under Clause 15.2, Clause 15.3 or otherwise, during the course of a Subscription Term will not entitle the Customer to a refund of any Charges (or any part thereof).
Maya Data Privacy shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Maya Data Privacy or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Maya Data Privacy's or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17.1 Variation. Maya Data Privacy may update the terms of this Agreement at any time on notice to the Customer in accordance with Clause 17.8. The Customer’s continued use of the Services following the deemed receipt and service of the notice under Clause 17.8 shall constitute the Customer’s acceptance to the terms of this Agreement, as varied. If the Customer does not wish to accept the terms of this Agreement (as varied) the Customer must immediately stop using and accessing the Services on the deemed receipt and service of the notice.
17.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.3 Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.4 Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.5 Entire Agreement. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
17.6 Assignment. The Customer shall not, without the prior written consent of Maya Data Privacy, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Maya Data Privacy may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
17.7 Counterparts. This Agreement may be executed using an electronic signature in accordance with applicable laws and in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
17.8.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by email, pre-paid first-class post or recorded delivery post to the other party at such address or email address as may have been notified by that party for such purposes.
17.8.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of the sending of the email.
17.9 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 claims) shall be governed by and construed in accordance with the laws of Ireland. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
17.10 No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in Clause 10.3. Each party confirms it is acting on its own behalf and not for the benefit of any other person.