“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity;
“Agreement” means these terms and conditions and all Orders;
“Content” means any and all data, files, documents, multimedia files, third party links, images, videos, and any other information or material whatsoever (in any format) made available by the Customer or its Affiliates or any Users (including any content owned by a third party) in connection with the use of the Products and Services or otherwise accessed and/or processed using the Products;
“Customer” means the organisation identified as such in the applicable Order;
“Customer Pre-Requisites” means the list of requirements in an Order;
“Data Protection Laws” means all applicable privacy and data protection laws including the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Protected Data and the privacy of electronic communications, as amended, replaced or updated from time to time;
“Data Protection Particulars” means the particulars set out in Schedule 1 hereunder;
“Data Subject Request” means a request made by a data subject to exercise any rights of data subjects under Data Protection Laws;
“Documentation” means the user guides made available by Hark Solutions relating to use of a Product;
“Effective Date” means the date of the first Order entered into between Hark Solutions and the Customer;
“Fault” shall have the meaning attributed at clause 7.4;
“Fee” means the fee payable by the Customer for use of the Product or Service, as specified in the applicable Order;
“Hosted Service(s)” means the cloud based services made available by Hark Solutions to the Customer to access pursuant to an Order;
“Intellectual Property Rights” means all intellectual property rights including without limitation patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how and in all cases whether or not registered or register able and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“Login Details” means the unique username and password required for all Users to access a Product;
“Maintenance Releases” means any corrected version of a Product from time to time issued by Hark Solutions;
“Minimum Requirements” means any minimum specifications required to use the features and functionality of the Product, as may be specified in an Order;
“Network” means the electronic communications network used by Hark Solutions to provide the Hosted Services;
“Order(s)” means each order agreed between the Customer and Hark Solutions for the use of a Product or supply of a Service from time to time;
“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
“Priority 1” means a Fault in the Product that causes serious disruption, degradation or failure of the Product;
“Priority 2” means a Fault that allows the Product to be used albeit in a limited or unintended way or cause some disruption or degradation to the Product and that must be corrected within a reasonable time;
“Priority 3” means a Fault that causes no material disruption or degradation to the Product;
“Product(s)” means any Software or Hosted Service;
“Protected Data” means personal data received from or on behalf of the Customer in connection with the performance of Hark Solutions obligations under this Agreement;
“Purpose” means to use, copy, compress, modify and transmit in order to provide the Customer with the Products, Support and Services and for Hark Solutions to perform its obligations under this Agreement;
“Scope of Use” means the Customer’s permitted scope of use of the Product or Service specified in an Order and including the information specified at clause 2.2;
“Services” means the data services, integration, and/or training services provided by Hark Solutions pursuant to an Order;
“Support” means the support and maintenance services described in clause 7 and any advice and guidance on the use and deployment provided by Hark Solutions in relation to the Products;
“Software” means the software products made available by Hark Solutions to the Customer for installation onto Customer hardware and equipment for use pursuant to an Order;
“Sub-processor” means another data processor engaged by Hark Solutions for carrying out processing activities in respect of the Protected Data on behalf of the Customer;
“Subscription Term” means the duration of each Order;
“User” shall have the meaning attributed at clause 2.4 and who the Customer has permitted to access and use the Product.
1.1. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.
1.2. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.3. A reference to writing or written includes e-mail.
1.4. A reference to “this Agreement” or to any other agreement or document referred to in this agreement is a reference to this agreement or such other document or agreement as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.5. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.