1. DEFINITIONS

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“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;

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“Agreement” means these terms and conditions and all Orders;

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“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;

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“Customer” means the organisation identified as such in the applicable Order;

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“Customer Pre-Requisites” means the list of requirements in an Order;

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“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;

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“Data Protection Particulars” means the particulars set out in Schedule 1 hereunder;

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“Data Subject Request” means a request made by a data subject to exercise any rights of data subjects under Data Protection Laws;

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“Documentation” means the user guides made available by Hark Solutions relating to use of a Product;

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“Effective Date” means the date of the first Order entered into between Hark Solutions and the Customer;

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“Fault” shall have the meaning attributed at clause 7.4;

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“Fee” means the fee payable by the Customer for use of the Product or Service, as specified in the applicable Order;

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“Hosted Service(s)” means the cloud based services made available by Hark Solutions to the Customer to access pursuant to an Order;

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“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;

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“Login Details” means the unique username and password required for all Users to access a Product;

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“Maintenance Releases” means any corrected version of a Product from time to time issued by Hark Solutions;

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“Minimum Requirements” means any minimum specifications required to use the features and functionality of the Product, as may be specified in an Order;

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“Network” means the electronic communications network used by Hark Solutions to provide the Hosted Services;

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“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;

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“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;

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“Priority 1” means a Fault in the Product that causes serious disruption, degradation or failure of the Product;

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“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;

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“Priority 3” means a Fault that causes no material disruption or degradation to the Product;

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“Product(s)” means any Software or Hosted Service;

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“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;

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“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;

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“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;

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“Services” means the data services, integration, and/or training services provided by Hark Solutions pursuant to an Order;

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“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;

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“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;

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“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;

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“Subscription Term” means the duration of each Order;

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“User” shall have the meaning attributed at clause 2.4 and who the Customer has permitted to access and use the Product.

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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.

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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.

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1.3.    A reference to writing or written includes e-mail.

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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.

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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.

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2. ORDERS

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2.1.    Hark Solutions and the Customer may from time to time mutually agree in writing to the provision of Products and/or Services by executing an Order, which shall be subject to these terms and conditions.

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2.2.    Each Order for a Product will specify the Scope of Use, which may include: (a) number and type of Users; (b) storage capacity; (c) numbers of licenses, copies or instances; (d) restrictions on geographical location from where a Product may be used or accessed; or (e) other restrictions. Unless otherwise specified in an Order, the term “Scope of Use” extends only to use of the applicable Product for Customer’s own internal business purposes.

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2.3.    The term “Order” also includes any renewals or purchases to increase or upgrade the Scope of Use.

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2.4.    Only the specific Users for whom the Customer has designated through the applicable Product may access and use the Product. Some Products may permit designation of different types of Users, in which case pricing and functionality may vary according to the type of User. “Users” may be a Customer’s (or a Customer Affiliate’s) employees, representatives, consultants, contractors, agents, or other third parties who are permitted to access and use the Product (subject to the limits in the applicable Order), provided they are acting for the Customer’s benefit and on its behalf, and the Customer acknowledges that it shall be responsible for all use of the Product by Users.

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2.5.    The Customer shall be liable for breach of this Agreement by a User as if it were a breach by the Customer. Hark Solutions reserves the right to suspend the access of any User it believes, acting reasonably, is not using a Product for the benefit of the Customer and on its behalf.

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2.6.    Where the Order specifies a limit on number of Users or storage capacity for a Product, the Customer may increase the number by placing a new Order or, in some cases, directly through the Product. In such cases, the Customer must pay additional Fees for the increase.

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2.7.    Where no limit on number of Users or storage capacity is specified in an Order, Customer agrees that such use of the Products will be subject to fair and reasonable use. Where Hark Solutions considers that the number of Users or storage capacity has exceeded what it considers fair and reasonable (for example: it results in an increase to Hark Solutions’ costs in providing the applicable Product(s) to the Customer), Hark Solutions reserves the right to give the Customer notice of such excess use, whereupon authorised representatives from each party shall hold regular meetings to discuss an increase to the Fee to account for such excess use. If the parties are unable to agree an increase to the Fee within 30 days of the date of Hark Solutions’ notice, Hark Solutions reserves the right to suspend the Customer’s use of the Product and cease provision of all Support and Services, without notice. Subject to clause 3.5.2, where the parties agree an increase to the Fee, Hark Solutions shall grant access to the Products as soon as reasonably practicable.

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3. DURATION AND TERMINATION

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3.1.    This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this Agreement, until either party gives to the other party three (3) months’ written notice to terminate. In the event any Order is in effect at the time of termination or expiration of this Agreement, the terms and conditions of this Agreement shall remain in effect for the duration of such Order, unless the Agreement is terminated in accordance with clause 3.5, whereupon all Orders shall terminate.

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3.2.   The parties acknowledge that the termination of an individual Order shall not affect the continuation of this Agreement or any other Order then in force. For the avoidance of doubt, this Agreement will remain in full force and effect even if there is no current active Order.

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3.3.   Each Order shall commence on the date specified in the Order (“Commencement Date”). From the Commencement Date, the Order shall continue for the applicable Subscription Term (in the case of Products) or until the applicable services are completed (in the case of Services). Orders with Subscription Terms shall automatically renew for equivalent Subscription Terms, unless terminated by either party in accordance with this Agreement.

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3.4.   Either party may terminate an Order at any time by providing notice in writing or by e-mail sent to the postal or e-mail address provided at clause 18, such notice to expire at the end of the relevant Subscription Term in which notice to terminate was received. Termination of an Order shall not affect any other Order in effect. Termination of the Agreement shall terminate all then current Orders in effect.

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3.5.   The Agreement and/or any Order may be terminated immediately on written notice:

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3.5.1.   by Hark Solutions if the Customer fails to make any payment due under the terms of this Agreement (other than and then only to the extent that any part of such a payment is reasonably disputed by the Customer) and such payment remains unpaid thirty (30) days after Customer’s receipt of a notice from Hark Solutions that such payment is due;

 

3.5.2.   by Hark Solutions if any period of suspension in accordance with clause 2.7 or 9.7 continues for longer than 60 days;

 

3.5.3.   by either party if the other party is in material breach of its contractual obligations and has not remedied such breach within thirty (30) days after receipt of a written notice of default from the other party;

 

3.5.4.   by either party if:

 

3.5.4.1.   such other party becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended);

 

3.5.4.2.   such other party ceases or threatens to cease to carry on the whole or a substantial part of its business;

 

3.5.4.3.   any distress or execution shall be levied upon such other party’s property or assets;

 

3.5.4.4.   such other party shall make or offer to make any voluntary arrangement or composition with its creditors;

 

3.5.4.5.   any resolution to wind up such other party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up such other party shall be presented and not withdrawn or dismissed within seven days or an order is made for the winding up of such other party;

 

3.5.4.6.   such other party is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it;

 

3.5.4.7.   a receiver or administrative receiver is appointed over all or any of such other party’s undertaking property or assets;

 

3.5.4.8.   any bankruptcy petition is presented or a bankruptcy order is made against such other party;

 

3.5.4.9.   an application is made for a debt relief order, or a debt relief order is made in relation to such other party;

 

3.5.4.10.   such other party is dissolved or otherwise ceases to exist; or

 

3.5.4.11.   the equivalent of any of the events described in Clause 3.5.4.1 to Clause 3.5.4.10 occurs in relation to such other party under the laws of any jurisdiction.

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3.6.   For the purposes of clause 3.5.3, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

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3.7.   On termination of any Order and/or this Agreement:

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3.7.1.    Customer’s access to the applicable Product and/or Service shall cease and any Content will no longer be accessible through the Product;

 

3.7.2.    the Customer shall immediately pay all outstanding invoices;

 

3.7.3.    except for a material breach by Hark Solutions of its obligations hereunder or termination by Customer pursuant to Section 3.5.3, Customer shall not be entitled to any refunds of Fees paid;

 

3.7.4.    Hark Solutions shall be entitled to invoice the Customer for any outstanding, properly incurred Fees and expenses in respect of the applicable Order or the Agreement, which shall be payable by the Customer in accordance with the terms of this Agreement.

 

3.7.5.    the Customer shall pay to Hark Solutions any sums payable by Hark Solutions to any supplier of third party services pursuant to any legally binding commitment entered into by Hark Solutions in relation to the terminated Order only, to the extent that Hark Solutions is unable to cancel or otherwise mitigate that commitment; and rights and liabilities of either party accruing or accrued prior to the termination of this Agreement (or part thereof) shall not be affected.

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3.8.    Hark Solutions may retain copies of the Content and/or other data (including any User’s data) made available through the Product for auditing and/or tax purposes, or as may be required by Hark Solutions to comply with applicable law.

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4. USE OF SOFTWARE

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4.1.    Subject to the terms of this Agreement, Hark Solutions grants the Customer and its Affiliates, a non-exclusive, non-transferable (without a right to sub-licence) license to install and use the Software referred to in an Order during the applicable Subscription Term, for the duration of the Order only, in accordance with the applicable Scope of Use and any Documentation.

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4.2.    Unless otherwise specified in an Order and subject to the Scope of Use, for each Software license that the Customer purchases, the Customer may install the Software on devices owned or operated by the Customer or its Affiliates.

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4.3.    The Customer shall not, and shall procure that its Users shall not, except as expressly permitted in this Agreement: (i) modify, translate, create or attempt to create derivative copies of or copy the Software in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Software or Customer’s right to use the Software.

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4.4.    The Software may include code and libraries licensed to Hark Solutions by third parties, including open source software. Open source software may be used according to the terms and conditions of the specific licence under which the relevant open-source software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 11.4.

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5. IPR INDEMNITY

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5.1.    Hark Solutions shall defend, indemnify and hold harmless, Customer and its Affiliates, and their respective officers, directors, employees and agents from and against any and all damages losses, liabilities, costs and expenses (including but not limited to legal costs) arising from or based on allegations of any third party claim that the Product(s) provided hereunder infringes any patent, copyright, trademark, trade secret or other  Intellectual Property Right by the use or possession of the  Product(s) by the Customer, subject to the remaining provisions of this Clause 5 and to the provisions of Clause 11.

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5.2.    The Customer shall promptly notify Hark Solutions of any claim or demand which is made, brought or threatened against the Customer in respect of the infringement or alleged infringement of any Intellectual Property Right by reason of the use or possession of the Product(s) by the Customer. The Customer agrees to grant Hark Solutions exclusive control of any litigation and negotiations arising from such a claim and to give Hark Solutions such assistance as it may reasonably request at Hark Solutions’ expense. Customer is entitled to participate in any defence at its own expense with counsel of its own choosing.

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5.3.    If a claim or demand for infringement or alleged infringement of any Intellectual Property Right is made in respect of the Product(s), or in the reasonable opinion of Hark Solutions, is likely to be made, Hark Solutions shall be entitled, at its own expense and option, either to:

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5.3.1.    modify or replace the infringing Product(s) (without detracting in any way from their performance or functionality) so that the same cease to be infringing; or

 

5.3.2.    procure the right for the Customer to continue using the Product(s) as contemplated by this Agreement; or

 

5.3.3.    if neither of the foregoing options is practicable, to require the Customer to return the affected Product(s) to Hark Solutions.

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5.4.    Hark Solutions shall have no liability for, and the Customer shall indemnify Hark Solutions against any claim that the Product(s) infringes any Intellectual Property Rights, where the cause of the infringement relates to:

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5.4.1.    any materials provided to Hark Solutions by Customer including without limitation the Content;

 

5.4.2.    modification, enhancement or alteration of the Product(s) by or on behalf of the Customer not approved by Hark Solutions;

 

5.4.3.    combination of the Product(s) with other software or hardware not approved by Hark Solutions; or

 

5.4.4.    due to the Customer using the Product(s) in breach of the provisions of this Agreement.

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6. ACCESS TO HOSTED SERVICES

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6.1.    In consideration for payment of the applicable Fees, Hark Solutions hereby grants to the Customer a non-exclusive, non-transferable (without a right to sub-licence) licence to access and use, and permit Users to access and use, the Hosted Service referred to in an Order for the Subscription Term for the duration of the Order, in accordance with the applicable Scope of Use and the Documentation.

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6.2.    Hark Solutions shall use reasonable endeavours to make the Hosted Service available to the Customer and the Users at all times, but Hark Solutions cannot guarantee an uninterrupted or fault free service.

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6.3.    Hark Solutions’ ability to provide the Hosted Service may be impaired by conditions or circumstances that are beyond its control, including, without limitation third party service providers, geographic or atmospheric conditions, local physical obstructions, server and/or Network at the same time. Hark Solutions shall take reasonable action to minimise the disruption caused by such circumstances but the Customer acknowledges, agrees and accepts that some such interruptions may not be avoidable.

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6.4.    The Network is not controlled by Hark Solutions and may from time to time be upgraded, modified, subject to maintenance work or otherwise amended by the owner of the Network. Such circumstances may result in the Hosted Service being temporarily unavailable. Hark Solutions will take reasonable action to minimise the disruption caused by such circumstances, but some such interruptions may not be avoidable.

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6.5.    Hark Solutions use industry standard security measures to protect against the loss, misuse and alteration of the information, data, and/or content handled by its Hosted Service. However, the Customer acknowledges and agrees that Hark Solutions cannot guarantee complete security of such information, data, and/or content or that its security measures will prevent hacks, worms, bugs, trojans or such other similar devices that may allow access to or unauthorised viewing of such information, data, and/or content.

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6.6.    There may be data storage, transmission, processing and User limits associated with the Hosted Service, as described in any Order. Hark Solutions reserves the right to charge for additional storage or overage fees at the rates specified on an Order.

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6.7.    Hark Solutions may impose new, or may modify existing, storage limits for the Hosted Service at any time at its discretion, with or without notice to the Customer.

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6.8.    Hark Solutions reserve the right to make changes to the Hosted Service or part thereof, from time to time at its sole discretion, and Hark Solutions may from time to time update, add, remove, modify and/or vary any features or functionalities of the Hosted Service with adequate notice to the Customer. Any change fundamentally effecting the Order will require a new Order.

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6.9.    The Customer shall not, and shall procure that Users shall not, except as expressly permitted in this Agreement: (i) modify, translate, create or attempt to create derivative copies of or copy the Hosted Service in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Hosted Service to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Hosted Service or Customer’s right to use the Hosted Service.

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7. SUPPORT AND MAINTENANCE

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7.1.    Hark Solutions offers Support as part of any Product purchase where described in the order and purchased by payment in advance.

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7.2.    Prior to requesting any Support, Customer shall use all reasonable endeavours to resolve any Fault using the Documentation (“First Level User Support”).

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7.3.    In the event the Customer is unable to resolve an interruption to a Product using First Level Support, the Customer shall promptly escalate the Fault to Hark Solutions, which shall be dealt with in accordance with clause 7.4 – 7.6 below. Hark Solutions shall be entitled to require the Customer to re-perform the First Level User Support if Hark Solutions, acting reasonably, determines that the escalated Fault may be resolved by the Customer through the First Level User Support. For the avoidance of doubt, Hark Solutions shall not be liable for any delay or failure to provide the Support which arises as a direct result of a failure by the Customer to comply with clause 7.2.

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7.4.    Hark Solutions offers Support between 9am – 5pm, UK time, Monday to Friday (excluding UK bank and public holidays) (“Working Hours”) for the duration of the Subscription Term in respect of use of Products, which comprises of diagnosis and resolution of interruptions to the Product (“Fault”) by telephone, e-mail and/or remote desktop support. Telephone and remote desktop support outside of normal UK office hours and including public holidays will be available to support key periods in the calendar where named individuals are agreed in advance and where possible, at least four days’ notice is requested from the customer in order to put in place the staffing required for this commitment to be fulfilled. Charge out rates will be time and a half where notice is given and where notice is less than four days the right is reserved to charge double time.

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7.5.    Fault diagnosis and resolution is subject to the Customer or any User providing:

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7.5.1.    a clear and accurate description of the Fault;

 

7.5.2.    the area of the Product and business to which it relates;

 

7.5.3.    what function was being performed when the Fault occurred and/or the sequence of events leading up to the occurrence of the Fault;

 

7.5.4.    the error message displayed, if any;

 

7.5.5.    sufficient details of the Fault’s effect on the Customer’s business operation to enable Hark Solutions to identify whether the Fault is a Priority 1, Priority 2 or Priority 3 issue; and

 

7.5.6.    any other information relating to the Product or the Fault which Hark Solutions requires to perform its obligations hereunder, including but not limited to a copy of the Customer’s data that forms part of the Product.

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7.6.    Subject to receiving a description in accordance with clause 7.5 above (a “Report”), Hark Solutions shall use its reasonable endeavours to respond to Faults within the following timescales after receipt of the Customer’s or a User’s request pursuant to clause 7.5f:

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7.7.    The support detailed in this clause 7 shall not include the diagnosis and rectification of any Fault resulting from:

 

7.7.1.    activities requiring Hark Solutions personnel to be physically present at a Customer site;

 

7.7.2.    support in relation to any part of a Product that has been modified in any way by the Customer;

 

7.7.3.    repair of data files that cannot be undertaken using standard procedures made available through the Product;

 

7.7.4.    support for any other software program including any operating systems not forming part of a Product;

 

7.7.5.    the use of a Product with third party software except as permitted by the Agreement;

 

7.7.6.    the failure by the Customer to implement any Maintenance Releases or recommendations in respect of or solutions to Faults previously advised by Hark Solutions;

 

7.7.7.    use of the Product other than in accordance with this Agreement, the Documentation or the Scope of Use;

 

7.7.8.    a fault in Customer or a third party’s software, hardware, network connections or application or any upgrade in respect thereof; or

 

7.7.9.    a fault in the equipment or in any other software operating in conjunction with or integrating with the Product.

 

7.8.    Customer shall, and procures that the Users shall, update and maintain the versions of their operating systems and pre-requisite software within reasonable timescales. Hark Solutions will endeavour to maintain a level of backwards compatibility with the use of its Products with non-current software and operating system versions. Notwithstanding the foregoing, Hark Solutions reserves the right not to support its Products where non-current pre-requisite software and operating system versions used by Customer and/or Users impact Hark Solutions’ ability to maintain security of its Products and Customer’s data or significantly limits Hark Solution’s ability to implement new features to its Products.

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8. SERVICES

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Training services

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8.1.    Hark Solutions will provide training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions. Hark Solutions shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services Hark Solutions provides (“Training Materials”). Any Training Materials provided to the Customer may be used only in connection with the applicable Product. If applicable, the Customer will reimburse Hark Solutions for reasonable travel and lodging expenses that are pre-approved by Customer in advance in the provision of training services.

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Services Generally

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8.2.    The Services shall be performed with reasonable skill and care in a manner consistent with generally accepted standards for identical or similar services.

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8.3.    Hark Solutions shall use reasonable endeavours to perform the Services in accordance with any timescales agreed between the parties, but any start or completion dates for the Services are estimates and provided for information only.

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8.4.    Ownership of all Intellectual Property Rights in the results of the deliverables developed and analysis conducted by Hark Solutions pursuant to an Order, as well as any methodologies, prototypes or applications developed by Hark Solutions under an Order shall be with Hark Solutions, unless expressly stated otherwise in the applicable Order.

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8.5.    Hark Solutions represents and warrants that the Products and Services provided under this Agreement do not and shall not infringe or misappropriate any third-party’s Intellectual Property Rights.

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8.6.    Ownership of all Intellectual Property Rights in the Content owned or controlled by Customer and or its Affiliates shall remain the property of Customer and/or its Affiliates. Neither this Agreement nor any exchange of proprietary or confidential information hereunder shall be construed as granting any right or license under any proprietary or confidential information owned or controlled by Customer and/or its Affiliates to Hark Solutions.

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8.7.    The Customer shall co-operate with Hark Solutions in such manner reasonably required by Hark Solutions in the performance of the Services, including the timely provision of information and data required by Hark Solutions and making available suitably qualified employees and contractors of the Customer.

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9. CUSTOMER OBLIGATIONS

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9.1.    The Customer is responsible for ensuring that any Content is not deemed to be offensive, illegal, inappropriate or that in any way:

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9.1.1.    promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

 

9.1.2.    harasses or advocates harassment of another person;

 

9.1.3.    displays pornographic or sexually explicit material;

 

9.1.4.    promotes any conduct that is abusive, threatening, obscene, defamatory or libellous;

 

9.1.5.    promotes any illegal activities;

 

9.1.6.    provides instructional information about illegal activities, including violating someone else’s privacy or providing or creating computer viruses;

 

9.1.7.    promotes or contain information that the Customer knows or believes to be inaccurate, false or misleading;

 

9.1.8.    engages in the promotion of contests, sweepstakes and pyramid schemes;

 

9.1.9.    contains any virus or other thing or device which may prevent, impair or otherwise adversely affect the operation of the Products; or

 

9.1.10.    infringes any Intellectual Property Rights or any other proprietary rights of any third party.

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9.2.    The Customer hereby grants, and procure that any User grants, to Hark Solutions a limited, non-exclusive, worldwide royalty free licence to use the Content and all other materials submitted by the Customer or any User solely for the purpose to perform its obligations hereunder. Upon expiration or termination of this Agreement including any Order, such Content and materials submitted by the Customer or any User shall be returned to Customer and all such use shall cease upon termination or expiration of this Agreement.

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9.3.    The Customer acknowledges that the Products do not verify the rights and restrictions applicable to any Content. Where the Customer does not own the Content, the Customer is solely responsible for checking the relevant licence rights and restrictions applicable to any Content. Hark Solutions shall not be liable to the Customer for any losses, damages, costs or expenses incurred by the Customer arising out of or in connection with its use of any Content through the Products.

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9.4.    The Customer warrants and represents:

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9.4.1.    that it owns, is licensed or otherwise has a right to use any and all the Intellectual Property Rights in any Content;

 

9.4.2.    the Content does not and will not contravene or breach any applicable law, regulation code of practice or directive; and

 

9.4.3.    the Content and its use through the Products does not and will not infringe any right, title or interest (including any Intellectual Property Rights) of any third party.

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9.5.    The Customer further agree that at all times, it shall, and procure that any User shall:

 

9.5.1.    not use Login Details with the intent of impersonating another individual;

 

9.5.2.    not allow any other person other than a User to use the Login Details;

 

9.5.3.    not do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Products;

 

9.5.4.    not use the Products, the content therein and/or do anything that will infringe any intellectual property right or other rights of any third parties;

 

9.5.5.    not use any information obtained using the Products otherwise than in accordance with this Agreement;

 

9.5.6.    comply with all Hark Solutions’ instructions and policies from time to time in respect of the use of the Products;

 

9.5.7.    co-operate with any reasonable security or other checks or requests for information made by Hark Solutions from time to time; and

 

9.5.8.    use the information made available to it using the Products at its own risk.

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9.6.    The Customer shall:

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9.6.1    comply with the Customer Pre-Requisites;

 

9.6.2.    promptly notify Hark Solutions in the event of a breach of security or any unauthorised use of Login Details; and

 

9.6.3.    be liable for all access to and use of the Products whether authorised by the Customer or not.

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9.7.    Customer shall not use the Products in such a way that adversely impacts Hark Solutions’ Network, its infrastructure or systems or which otherwise affects another Hark Solutions customer’s use of the Products. Hark Solutions reserves the right to suspend Customer’s use of the Products on notice if the Customer’s use of a Product adversely impacts, or Hark Solutions reasonably believes may adversely impact, the Hark Solutions Network, its infrastructure or systems or any other customer’s use of the Products. Subject to clause 3.5.2, any suspension in accordance with the foregoing shall continue until Customer is able to adjust its use of the Products and evidence to Hark Solutions’ satisfaction that its continued use of the Product will not have such adverse impact.

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10. FEES AND PAYMENT

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10.1.    Unless otherwise specified in an Order, Hark Solutions invoices all Fees in advance. All Fees are non-refundable, unless expressly stated in an Order.

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10.2.    The Customer shall notify Hark Solutions immediately in the event it ceases to comply with any of the restrictions applicable to any Order. In the event Hark Solutions receive such notice, or Hark Solutions deems acting reasonably that the Customer has exceeded the restrictions of the Order, Hark Solutions reserve the right to change the Order, which may result in the payment of additional Fees. Hark Solutions reserves the right to deduct such Fees from the original method of payment or invoice for the additional amount.

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10.3.    Any invoices are payable within thirty (30) days of the invoice date unless stated differently in an order. If Hark Solutions does not receive payment by the applicable due date, it reserves the right to withhold access and/or terminate the Order(s).

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10.4.    Hark Solutions reserves the right to charge the Customer interest on any payment not made by the due date. Interest will be calculated on a daily basis, both before and after any judgement, at the rate of 1.5 per cent per annum above the base rate from time to time of the Bank of England, for the period from the due date until the date on which it is actually paid, compounded quarterly and payable on demand.

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10.5.    Hark Solutions reserve the right to increase the Fees at any time on at least ninety (90) days advance written notice to the Customer. Such increase of Fees shall take effect from the start of the Subscription Term following the Subscription Term in which Hark Solutions gave notice.

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10.6.    All payments made or to be made under this Agreement shall be made in full, without any deduction, withholding, set-off or counterclaim on account of any taxes or otherwise.

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10.7.    All Fees payable hereunder are exclusive of VAT or other sales tax, which will be added at the applicable rate.

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11. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY

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11.1.    The Customer hereby warrants that (a) all Users are at least 18 years old; (b) it has the right and capacity to enter into and be bound by this Agreement; and (c) it shall comply with all applicable laws regarding the use of any Products and Service.

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11.2.    The Products should not be used as a back-up facility. The Customer should ensure that it has adequate back-up facilities for any Content and Hark Solutions shall not be liable for any losses or damages incurred by the Customer or any Users arising out of or in connection with Customer’s failure to implement adequate back-up facilities in respect of any Content.

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11.3.    No oral or written information or advice given by Hark Solutions shall or shall be deemed to create a warranty. Hark Solutions do not warrant or represent that any specific results will be produced by the Products, nor do Hark Solutions guarantee that the Products will be fault free. The Customer acknowledges that the quality, completeness and accuracy of the Products is directly dependent on the quality, completeness and accuracy of the Customer’s Content.

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11.4.    All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral are hereby expressly excluded to the fullest extent permissible by law. Consequently all information, advice, suggestions and recommendations made available to the Customer are provided on an “as is” basis.

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11.5.    Nothing in this Agreement shall be deemed to exclude, restrict or limit liability for the following categories:

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11.5.1.    death or personal injury resulting from negligence; or

 

11.5.2.    any liability for fraudulent misrepresentation.

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11.6.    Subject to clause 11.5, neither party shall be liable for any:

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11.6.1.    loss of profits, sales, business, or revenue;

 

11.6.2.    loss or corruption of data, information or software;

 

11.6.3.    loss of business opportunity;

 

11.6.4.    loss of anticipated savings;

 

11.6.5.    loss of goodwill; or

 

11.6.6.    special, indirect or consequential loss,

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whether such losses, damages, costs and expenses resulted from negligence, breach of contract or otherwise.

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11.7.    Subject to clause 11.5 and 11.8, the total amount of Hark Solutions’ liability to the Customer per claim or series of related claims shall not exceed the Fees paid by the Customer to Hark Solutions under the Order pursuant to which the claim arose in the twelve (12) month period immediately preceding the month in which the claim arose (provided that all claims arising from the same or substantially the same circumstances will be treated as one, and will be treated as arising on the date on which the first such claim arose).

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11.8.    Subject to clause 11.5, Hark Solutions’ maximum liability under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence), misrepresentation, breach of statutory duty or otherwise shall not exceed in aggregate the total amount of the Fees paid by the Customer to Hark Solutions under this Agreement.

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12. INTELLECTUAL PROPERTY RIGHTS

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12.1.    Hark Solutions owns all rights in the Intellectual Property Rights relating to the Products and Services. All right, title and interest in and to the Products and Services will remain exclusively with Hark Solutions and/or its licensors.

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12.2.    The Customer is expressly prohibited from:

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12.2.1.    reproducing, copying, editing, transmitting, uploading or incorporating into any other materials, any of the Products; and

 

12.2.2.    removing, modifying, altering or using any registered or unregistered marks/logos/design owned by Hark Solutions and/or its licensors, and doing anything which may be seen to take unfair advantage of its reputation and goodwill or could be considered an infringement of any of the rights in the Intellectual Property Rights owned by and/or licensed to Hark Solutions.

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12.3.    From time to time, the Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Hark Solutions related to the Products and/or Services, (“Feedback”). Hark Solutions may in connection with any of the Products or Services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Confidential Information, and nothing in this Agreement limits Hark Solutions rights to independently use, develop, evaluate, or market products incorporating Feedback.

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13. DATA PROTECTION

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13.1.    When used in this Agreement, the following terms shall have the same meaning as in the Data Protection Laws:

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13.1.1.    personal data;

 

13.1.2.    data controller;

 

13.1.3.    data processor;

 

13.1.4.    processing;

 

13.1.5.    data subject;

 

13.1.6.    supervisory authority.

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13.2.    The Customer shall comply with all Data Protection Laws in connection with the collection, storage and processing of Protected Data (which shall include the Company providing all of the required fair processing information to, and obtaining all necessary consents from, data subjects), and the exercise and performance of its respective rights and obligations under this clause 13 and maintaining all relevant regulatory registrations and notifications as required under Data Protection Law

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13.3.    In relation to the processing of Protected Data under this Agreement, the parties acknowledge and agree that the Customer shall be the data controller and Hark Solutions shall be the data processor. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to Hark Solutions in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.

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13.4.    The Customer acknowledges that in relation to the processing activities required of Hark Solutions hereunder:

 

13.4.1.    the subject matter and duration of the processing;

 

13.4.2.    the nature and purpose of the processing;

 

13.4.3.    the type of Protected Data being processed;

 

13.4.4.    the categories of data subjects whose Protected Data is being processed,

shall be as described in the Data Protection Particulars.

 

13.5.    In relation to Protected Data processed under this Agreement, Hark Solutions shall:

 

13.5.1.    only process (and shall ensure its personnel only process) the Protected Data in accordance with Schedule 1 and this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and Hark Solutions shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest) and if Hark Solutions believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Product, the Support or the Services until the parties have agreed appropriate amended instructions which are not infringing;

 

13.5.2.    implement and maintain appropriate technical and organisational measures so as to ensure a level of security in respect of the Protected Data processed by it that is appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed;

 

13.5.3.    ensure that persons authorised to process the Protected Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

 

13.5.4.    refer all Data Subject Requests it receives to the Customer within three business days of receipt of the request and taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to Data Subject Requests for exercising the data subject’s rights laid down in Chapter III of the GDPR and Hark Solutions shall be permitted to charge for its time spent in providing such assistance at its then current time and materials rate;

 

13.5.5.    provide such assistance as the Customer reasonably requires (taking into account the nature of processing and the information available to Hark Solutions) to the Customer in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to:

 

13.5.5.1.    data protection impact assessments (as such term is defined in Data Protection Laws);

 

13.5.5.2.    prior consultation with a supervisory authority regarding high risk processing;

 

13.5.5.3.    notifications to the supervisory authority and/or communications to data subjects by the Customer in response to any Personal Data Breach;

 

13.5.6.    at the choice of the Customer, delete or return all the Protected Data to the Customer after the end of the provision of services relating to processing, and delete existing copies unless applicable law requires retention of the Protected Data;

 

13.5.7.    in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Hark Solutions’ compliance with the obligations placed on it under this clause 13 and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose, provided that:

 

13.5.7.1.    a maximum of one audit shall be permitted in any 12 month period under this clause 13.5.7;

 

13.5.7.2.    the Customer ensures that the audit is conducted on a confidential basis and that any of Hark Solutions’ confidential information obtained as a result of the audit is not disclosed to anyone other than those allowed to conduct the audits in the first place and their professional advisers or those who may need to see the information concerned in order to consider the results of the audit and to take action accordingly;

 

13.5.7.3.    the Customer uses reasonable efforts to ensure that audits are, as far as reasonably possible, conducted in such a way as to keep any disruption to the provision of the Products, the Support and Services and to Hark Solutions’ business generally to a minimum,

 

and Customer shall pay Hark Solutions’ reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits (save that no charge will be made if the audit or inspection was carried out because of a Hark Solutions material breach of this clause 13).

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13.6.    Hark Solutions shall notify the Customer without undue delay and in writing or by e-mail on becoming aware of any Personal Data Breach.

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13.7.    The Customer hereby grants Hark Solutions general authorization to engage sub-processors in the provision of the Products, Support and/or performance of the Services, provided always that Hark Solutions shall give the Customer prior notice of its intention to add or replace a sub-processor. Following Customer’s receipt of Hark Solutions’ notice of any additional or replacement sub-processors, the Customer shall notify Hark Solutions if it objects to the new sub-processor. If the Customer does not object to the sub-processor within 14 days of receiving the information, the Customer shall be deemed to have accepted the sub-processor. If the Customer has raised a reasonable objection to the new sub-processor, and the parties have failed to agree on a solution within a reasonable time, either party shall have the right to terminate this Agreement with a notice period determined by the terminating party. During the notice period, Hark Solutions shall not transfer any Protected Data to the proposed additional or replacement sub-processor.

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13.8.    Hark Solutions will not transfer the Protected Data to a Sub-processor located in a country outside of the EEA which is not recognised by the European Commission to have an adequate level of protection in accordance with Data Protection Laws unless the transfer by Hark Solutions of the Protected Data is effected by such legally enforceable mechanism(s) for transfers of personal data as may be permitted under Data Protection Laws from time to time.

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13.9.    Hark Solutions and the Customer will each notify the other of the individual within its organisation authorised to respond from time to time to enquiries regarding the Protected Data and the processing which is the subject of this Agreement. Hark Solutions and the Customer shall each deal promptly and reasonably with all such enquiries.

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14. VIRUSES, HACKING AND OTHER OFFENCES

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14.1.    The Customer will not, and procures that the User will not, misuse the Products by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. The Customer must not attempt to gain unauthorised access to the Products, the server on which the Products are stored or any server, computer or database connected to the Products. The Customer must not attack the Products via a denial-of-service attack or a distributed denial-of service attack.

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14.2.    By breaching this provision, the Customer would commit a criminal offence under the Computer Misuse Act 1990. Hark Solutions will report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing Customer’s identity to them. In the event of such a breach, Customer’s right, together with any User’s right, to use the Products or receive the Support and/or Services will cease immediately.

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14.3.    Hark Solutions will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect Customer’s computer equipment, computer programs, data or other proprietary material due to Customer’s, or any User’s, use of the Products, Support and/or Services or to Customer’s, or any User downloading of any material posted on it.

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15. PUBLICITY AND MARKETING

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15.1.    Subject to the Customer’s prior approval during the Subscription Term, Hark Solutions may in any of its marketing material refer to the Customer as a Hark Solutions customer and refer to the type of services that Hark Solutions have provided to it.

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15.2.    Subject to the Customer’s prior approval, during the Subscription Term, Hark Solutions may publish and circulate a case study describing the Products supplied by to the Customer, including aggregate figures relating to Customer’s use of the Products and the benefits it has brought to its business (for use by Hark Solutions as a marketing tool).

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