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Lative Terms of Service rights, copyright, design rights, utility models,
trademarks (whether or not any of the above are
These Terms of Service are agreed and entered into by registered), trade or business names, goodwill,
Lative Limited, registered under No. 694940 in Ireland at rights in domain names, rights in inventions, rights
Rockfalls House, Kindlestown Upper, Delgany, Co. in data, moral rights, database rights, rights in know-
Wicklow A63 RP04, Ireland (“Lative”) and the customer how and confidential information, and any other
and its Affiliates (the “Customer”), each a “Party” and intellectual property rights that subsist in computer
together, the “Parties”. These Terms of Service shall take software, computer programs, websites,
effect from the date of signing of a Service Order as long documents, information, techniques, business
as there is a Service Order in effect or until terminated in methods, drawings, logos, instruction manuals, lists
accordance with the terms of this Agreement. and procedures and particulars of customers,
marketing methods and procedures and advertising
1. Definitions literature, including the “look and feel” of any
websites source code and all intellectual property
1.1 “Agreement” means this agreement between the rights concerning a technology application, and all
Customer and Lative consisting of these Terms of other intellectual and industrial property and similar
Service, the Data Processing Agreement entered or analogous rights existing under the laws of any
into by the parties (the “DPA”), the Schedules and country and all pending applications for and right to
Service Order(s) entered into in accordance with the apply for or register the same (present, future and
terms of this Agreement; contingent, and including all renewals, extensions,
revivals and all accrued rights of action);
1.2 “Affiliates” means any entity that directly or
indirectly controls, is controlled by, or is under 1.11 “Lative Platform” means the platform by which
common control with another entity, and in this Customer Content is made available to Lative and
definition “control” means that a person, alone or Lative provides the Lative Services;
together with another person, has an interest in 50%
or more of the equity share capital of a company, or 1.12 “Lative Services” means the growth efficiency
is entitled to exercise or control the exercise of 50% metric and sales performance assessment
or more of the voting power of a company at any subscription Lative Services, as may be further
general meeting of that company; described in the Documentation, provided by Lative
to the Customer under this Agreement;
1.3 “Authorised User” means any individual who is
authorised by the Customer to use the Lative 1.13 “Service Order” means a mutually executed,
Services; Lative-approved order form that references these
Terms of Service;
1.4 “Effective Date” means the date on which the Lative
Services shall commence as detailed in the Service 1.14 “SLA” means the service level agreement as set out
Order; in Schedule Two;
1.5 “Customer Content” means any data provided to 1.15 “Subscription Fees” has the meaning set out in
Lative by or at the direction of Customer or its Clause 4;
Authorised Users, including via the Lative Platform
or via a third-party platform for the purpose of using 1.16 “Subscription Term” has the meaning set out in
the Lative Services; Clause 12.1;
1.6 “Data Protection Law” shall have the meaning 1.17 “Virus” means anything or device (including any
ascribed to it in the DPA; software, code, file or programme) which may:
prevent, impair or otherwise adversely affect the
1.7 “Documentation” means any technical operation of any computer software, hardware or
documentation relating to the Lative Services which network, any telecommunications service,
Lative may provide the Customer from time to time; equipment or network or any other service or device;
prevent, impair or otherwise adversely affect access
1.8 “Initial Subscription Term” shall have the meaning to or the operation of any programme or data,
set out in clause 12.1 including the reliability of any programme or data
(whether by re-arranging, altering or erasing the
1.9 “Insolvency Event” means if a Party summons a programme or data in whole or part or otherwise); or
meeting of its creditors, makes a proposal for a adversely affect the user experience, including
voluntary arrangement, becomes subject to any worms, trojan horses, viruses and other similar
voluntary arrangement, is unable to pay its debts, things or devices; and
has a receiver, manager, administrative receiver or
examiner appointed over any of its assets, 1.18 “Vulnerability” means a weakness in the
undertakings or incomes, has passed a resolution computational logic (for example, code) found in
for its winding-up (except for the purpose of a software and hardware components that when
voluntary reconstruction or amalgamation), is exploited, results in a negative impact to the
subject to a petition presented to any court for its confidentiality, integrity, or availability, and the term
winding-up (except for the purpose of a voluntary Vulnerabilities shall be construed accordingly.
reconstruction or amalgamation), has a provisional
liquidator appointed or has any other analogous 2. Lative Services
insolvency proceedings initiated against it;
2.1 Lative shall, during the Subscription Term, provide
1.10 “Intellectual Property Right” means any and all the Lative Services to the Customer on and subject
intellectual property rights of any nature, whether to the terms of the Agreement.
registered, registerable or otherwise, including
patents, trade dress, trade secrets, patentable
2.2 Lative shall make the Lative Services available in Lative Services and/or the Documentation;
accordance with the terms of the SLA at Schedule 2 or
of this Agreement.
3.1.4 use the Lative Services and/or
2.3 Lative will, as part of the Lative Services and at no Documentation to provide Lative Services
additional cost to the Customer, provide the to third parties; or
Customer with Lative’s standard customer support
services as detailed in SLA (the “Support Services”). 3.1.5 license, sell, rent, lease, transfer, assign,
distribute, display, disclose, or otherwise
2.4 No other terms or Customer standard terms will commercially exploit, or otherwise make
apply to the Lative Services or will form part of this the Lative Services and/or Documentation
Agreement unless expressly accepted in writing and available to any third-party except the
signed by parties’ authorised signatories. Authorised Users, or
2.5 Subject to the Customer’s payment of the 3.1.6 attempt to obtain, or assist third parties in
Subscription Fees in accordance with the terms of obtaining, access to the Lative Services
this Agreement and the Customer’s compliance with and/or Documentation, other than as
the restrictions set out in this clause 3 and the other provided under this clause 3; or
terms and conditions of this Agreement, Lative
hereby grants to the Customer a worldwide, royalty- 3.1.7 knowingly introduce or permit the
free, non-exclusive, non-transferable right, without introduction of, any Virus or Vulnerability
the right to grant sublicences, to permit the into Lative’s network and information
Authorised Users to use the Lative Services and the systems.
Documentation during the Subscription Term solely
for the Customer’s internal business operations. 3.2 Customer shall:
2.6 Customer shall cooperate with Lative in all matters 3.2.1 ensure that the Authorised Users use the
relating to the Lative Services and will give Lative Lative Services and the Documentation in
timely access to any Customer Content, materials accordance with the terms and conditions
and systems reasonably necessary for Lative to of this Agreement and be responsible for
provide the Lative Services, and if Customer fails to any Authorised User’s breach of this
do so, Lative’s obligation to provide the Lative Agreement;
Services will be excused until access is provided.
Where applicable, Customer will ensure the 3.2.2 use the Lative Services in accordance with
availability of appropriately qualified internal IT or the Acceptable Use Policy in Schedule 1;
development resources during onboarding of the
Services to support the delivery of integrations using 3.2.3 be solely responsible for the accuracy,
the open API. quality, reliability, integrity and legality of
Customer Content;
2.7 Affiliates of Customer may procure Services from
Lative under the terms and conditions of this 3.2.4 be responsible for obtaining and
Agreement, provided that each such Affiliate enters maintaining its equipment, third-party
into a Service Order for such Services, referencing software and services needed to connect
this Agreement. Any Affiliate that enters into such a to, access or otherwise use the Lative
Service Order with Lative will be deemed to be Services, including as set out in the
“Customer” hereunder, provided that such Service Documentation;
Order, together with these Terms of Service, will
constitute a separate contract with such Affiliate. 3.2.5 use the current and up-to-date API as
made available by Lative, which may be
3. Customer Obligations changed from time to time as notified in
writing by Lative;
3.1 The Customer shall not, except as may be allowed
by any applicable law which is incapable of 3.2.6 be solely responsible for its failure to
exclusion by agreement between the Parties and maintain such equipment and software, or
except to the extent expressly permitted under this its failure to use the current version of the
Agreement: APIs made available by Lative and Lative
will have no liability for such failures
3.1.1 attempt to copy, modify, duplicate, create (including under the SLA);
derivative works from, frame, mirror,
republish, download, display, transmit, or 3.2.7 obtain and shall maintain all necessary
distribute all or any portion of the Lative licences for Customer’s systems and third-
Services and/or Documentation (as party software used by Customer in
applicable) in any form or media or by any integration with the Lative Services, and
means; or consents required by applicable Data
Protection Laws for Lative’s processing of
3.1.2 attempt to de-compile, reverse compile, Customer Content; and
disassemble, reverse engineer or
otherwise reduce to human-perceivable 3.2.8 use commercially reasonable endeavours
form all or any part of the Lative Services; to prevent any unauthorised access to, or
or use of, the Lative Services and/or the
Documentation and, in the event of any
3.1.3 access all or any part of the Lative Services such unauthorised access or use, promptly
and Documentation in order to build a notify Lative.
product or service which competes with the
3.3 Suspension. Customer acknowledges that it is 4.3.5 exclusive of value-added or other sales tax,
solely responsible for ensuring that its use (and the which shall be added to Lative’s invoice(s)
use of its Authorised Users) of the Services do not at the appropriate rate, if applicable.
infringe this clause 3. Without prejudice to Lative’s Customer shall pay all Fees in full without
other rights in law or equity, Lative reserves the set off or counterclaim.
right, without liability to Customer, to suspend or
disable Customer’s or any Authorised Users access 4.4 Disputes and Non-Payment. If Customer
to the Services where Customer or an Authorised reasonably disputes any portion of Lative’s invoice,
User is in breach of the provisions of this clause 3 Customer will pay the undisputed portion of the
and fails to remedy such breach within ten (10) days invoice and submit written notice of the claim with
of being notified by Lative to do so, provided sufficient detail to identify the issue. All billing
however that where such breach of same: disputes will be submitted to Lative within thirty (30)
days of receipt of invoice. The Parties shall then
3.3.1 violates or may violate any applicable law; negotiate in good faith to attempt to resolve any
or such disputes within thirty days (30) of notice. If
Lative has not received payment of undisputed Fees
3.3.2 has or may have a material adverse impact within fifteen (15) days after the due date in
on Lative’s ability to provide the Services to accordance with the payment terms, and without
its clients; or prejudice to any other rights and remedies of Lative,
Lative may, subject to providing a further fifteen (15)
3.3.3 impacts on the integrity and security of the days’ written notice, without liability to Customer,
Platform, disable Customer’s password, account and
suspend access to all or part of the Services and
then no remedy period shall be granted to Customer Lative shall be under no obligation to provide any or
prior to Lative exercising the suspension or all of the Services while the invoice(s) concerned
disablement rights herein. Customer shall not remain unpaid.
thereby be entitled to claim any refund or
compensation for such suspension or disablement 4.5 Fees. Lative may increase the Fees at the end of
the Initial Subscription Term and any Renewal
and shall remain responsible for all fees arising
Period by giving Customer not less than sixty (60)
during any period of suspension. days’ notice with such notice to expire at the end of
the Initial Subscription Term or any Renewal Period
4. Fees as the case may be. During this notice period the
Customer can either:
4.1 Fees. Customer shall:
4.5.1 accept the increase in the Fees by
4.1.1 pay Lative the Subscription Fees as set out
continuing to avail of the Lative Services;
in the Service Order (the “Subscription
or
Fees”), and
4.5.2 reject the increase in Fees and issue a
4.1.2 provide to Lative approved purchase order
notice to Lative of their intention to
information and any other relevant valid,
terminate this Agreement on the expiration
up-to-date and complete contact and billing
of the Initial Subscription Term or Renewal
details.
Period, as the case may be.
4.2 Excess usage. If the Customer exceeds the
5. Ownership and Proprietary Rights
number of Authorised Users as detailed in the
applicable Service Order, Customer shall incur
5.1 Lative’s Proprietary Rights. The Customer
additional usage fees at the rate set out in the
acknowledges and agrees that Lative and/or its
applicable Service Order for use of the Lative
licensors own all Intellectual Property Rights in the
Services (“Additional Usage Fees”). Additional
Lative Services and the Documentation including
Usage Fees shall be payable by the Customer
any improvements, amendments, modifications or
within 30 days of the end of the month in which an
enhancements thereto. Except as expressly stated
undisputed invoice from Lative detailing the
in this Agreement, this Agreement does not grant
Additional Usage Fees incurred was received by
the Customer any rights to, under or in, any patents,
Customer.
copyright, database right, trade secrets, trade
names, trademarks (whether registered or
4.3 Payment. Except as otherwise provided in the
unregistered), or any other rights or licences in
applicable Service Order, Fees are:
respect of the Lative Services and/ or the
Documentation.
4.3.1 payable in /the currency set out in the
Service Order; 5.2 Feedback. All written or oral comments, ideas,
suggestions made by Customer to Lative regarding
4.3.2 except as otherwise explicitly stated the Lative Services (including user experience,
herein, non-cancellable and non- functionality, and performance of the Lative
refundable; Services; collectively, “Feedback”) may be freely
utilised by Lative without attribution or compensation
4.3.3 subject to Clause 4.2, payable in advance; of any kind to Customer.
4.3.4 payable within the payment terms set forth 5.3 Customer Content and Licence. As between the
in the Service Order; and Parties, the Customer Content will be owned by
Customer. Customer retains all right, title, and
interest in and to the Customer Content. Customer
hereby grants to Lative a limited, non-exclusive, ultimately liable for any breach thereof. In addition,
worldwide license to use, copy, store, transmit, either Party may provide a copy of this Agreement
display and modify Customer Content in order to or otherwise disclose its terms in connection with
provide, support and maintain the Lative Services any audit, financing transaction, regulatory or due
and related Support for the Subscription Term. diligence inquiry provided the recipients are subject
Notwithstanding anything else to the contrary in this to obligations of confidentiality at least as restrictive
Agreement, Customer shall own all intellectual as those contained herein. Except as expressly
property rights in or to the Outputs. “Output” means provided in this Agreement, no ownership or license
any and all reports, analyses, measurements, rights are granted in any Confidential Information.
metrics or other output of data or information,
including if any of the foregoing relates to Customer 6.3 The obligations of confidentiality shall continue
Content, that are generated through the use of the during the term of this Agreement and thereafter,
Lative Services by Customer. unless and until such Confidential Information falls
within one of the exceptions outlined in Clause 6.4.
5.4 Usage Data. Lative shall have the right to
aggregate, collect and analyse data and other 6.4 This clause 6 shall not apply with respect to
information relating to the provision, use and information the Receiving Party can document:
performance of the Lative Services (only in an
aggregated anonymised form, and in a manner 6.4.1 is in the public domain as a result of no act
which does not permit identification of the Customer or omission of the Receiving Party or its
or any individual and does not include any Personal employees or agents;
Data or Customer’s Confidential Information)
(“Anonymised Data”) and shall be free (during and 6.4.2 is received by the Receiving Party from
after the term hereof) to use such Anonymised Data third parties without restriction and without
and other information to develop and improve the breach of a duty of nondisclosure by such
Lative Services and other Lative offerings. All right, third-party;
title, and interest in Anonymised Data and the Lative
Services, including any software products or Lative 6.4.3 was independently developed by the
Services derived from or enhanced as a result of the
Receiving Party without reliance on the
Anonymised Data shall at all times be and remain
vested in Lative. Confidential Information as evidenced by
its written records at the time; or
5.5 Lative Marks. Other than as displayed within the
Lative Service or Outputs, Customer shall only use 6.4.4 was, prior to its receipt by the Receiving
or display Lative’s tradenames, service marks, Party from the Disclosing Party, in the
trademarks or logos (each, a “Lative Mark”) with the possession of the Receiving Party and at
prior consent of Lative in writing (which may in its its free disposal.
sole discretion be delayed and/or withheld) and
where Lative gives its consent the Customer may 6.5 If the Receiving Party is confronted with legal action
only use or display the Lative Mark in accordance to disclose the Confidential Information received
with the guidelines and/or restrictions as may be under this Agreement from the Disclosing Party or it
provided by Lative. is required to be disclosed by operation of law, the
Receiving Party shall, unless prohibited by the
6. Confidentiality applicable laws, provide prompt written notice to the
Disclosing Party to allow the Disclosing Party an
6.1 Each Party (the “Receiving Party”) acknowledges opportunity to seek a protective order or other relief
that, in the course of this Agreement, it may obtain that it deems appropriate, and the Receiving Party
Confidential Information from the other Party, (the shall reasonably assist the Disclosing Party in such
“Disclosing Party”). The Receiving Party shall keep efforts. If disclosure is nonetheless required, the
in confidence and protect the Confidential Receiving Party shall limit its disclosure to only the
Information of the Disclosing Party from portion of the Confidential Information which must
unauthorised disclosure or dissemination and use be disclosed as advised by its legal counsel.
no less than that degree of care it uses to protect its
own like information, and in any event no less than 6.6 Any breach or threatened breach by the Receiving
reasonable care. The Receiving Party shall not use Party of an obligation under this clause 6 may cause
such Confidential Information except in furtherance the Disclosing Party immediate and irreparable
of this Agreement, for no other purpose, except that harm for which damages alone may not be an
Receiving Party may disclose Confidential adequate remedy. Consequently, the Disclosing
Information to a bona fide potential acquirer of Party has the right, in addition to other remedies
Receiving Party for the purpose of evaluating a available at law or in equity, to seek injunctive relief
potential acquisition, provided such acquirer is against the Receiving Party or to compel specific
bound by confidentiality obligations no less performance of this clause 6.
restrictive than those contained herein.
6.7 A Receiving Party must notify the Disclosing Party
6.2 The Receiving Party shall not disclose any in writing, giving full details known to it immediately,
Confidential Information to any person without the when it becomes aware of any actual, suspected,
Disclosing Party’s prior written consent except that likely or threatened breach by any person of any
the Receiving Party may disclose the Confidential obligation in relation to the Confidential Information,
Information to its officers, employees, independent or any actual, suspected, likely or threatened theft,
contractors and agents (“Representatives”) on a loss, damage, or unauthorised access, use or
“need-to-know” basis, provided that such disclosure of or to any Confidential Information.
Representatives are bound by a written agreement
with materially the same terms and conditions as 6.8 Upon written request by Customer and upon
this clause 6 and the Receiving Party remains termination or expiration of this Agreement, Lative
shall promptly return or destroy (or if embodied 7.4.4 it shall implement industry best practices to
electronically, permanently erase) Customer screen for and remove any virus, time
Content and Customer Confidential Information, all bomb, worm, Trojan horse, disabling
as directed by Customer. Lative shall thereafter device, automatic restraint, or similar
certify compliance with the foregoing in writing. For program or device designed to impede or
the avoidance of doubt, Lative shall not be obliged harm Customer, the Lative Services, and
to return, destroy or delete any computer records or
Customer’s Confidential Information;
files containing Customer Content and Customer
Confidential Information created pursuant to
7.4.5 the Lative Services are SOC 2 Type II
automated electronic archiving or back-up
procedures in the ordinary course of business so certified and Lative shall maintain such
long as such files are not generally accessible accreditation and certification throughout
beyond the need for disaster recovery or similar for the Lative Services during the Term of
operations. this Agreement; and
7. Warranties and Disclaimers 7.4.6 Lative Services shall not include Copy-Left
Open Source Software. “Copy-Left Open
7.1 General Warranty: Each Party hereby represents Source Software” means any software that
and warrants that it is: requires as a condition of use, modification
and/or distribution that such software or
7.1.1 duly organised and validly existing under other software incorporated into, derived
the laws of its jurisdiction of formation from, or distributed with such software, be:
and has the full power and authority to (i) disclosed or distributed in source code
enter into this Agreement and assume form; (ii) licensed for the purpose of making
the obligations and grant the rights and derivative works; and/or (iii) redistributable
licenses stated herein; and at no charge.
7.1.2 not bound by any agreement (including, 7.5 Customer warrants and represents that the
but not limited to, any confidentiality or Customer Content:
non-competition agreement), obligation
or restriction that would interfere with its 7.5.1 is owned by Customer or provided with the
obligations under this Agreement, and express consent from the third-party
that performance hereunder shall not holding any ownership rights (including
constitute a breach of such agreements, copyright) over such material, or,
obligations, or restrictions. alternatively, are in the public domain, and
is not owned by any third-party or
7.2 Performance Warranty. Lative warrants to otherwise covered by copyright laws;
Customer that the Lative Services will operate in
material conformity with the applicable 7.5.2 does not breach the rights of any person or
Documentation and Lative will not materially entity, including rights of publicity, privacy,
decrease the functionality or overall security of the
or under applicable Data Protection Laws
Lative Services during the applicable Subscription
or direct marketing laws and are not
Term (the “Performance Warranty”).
defamatory; and
7.3 Performance Warranty Remedy. If Lative
breaches the Performance Warranty, and Customer 7.5.3 does not result in consumer fraud
makes a reasonably detailed warranty claim within (including being false or misleading),
30 days of discovering the issue, then Lative will use product liability, tort, breach of contract,
reasonable efforts to correct the breach or non- breach of Intellectual Property Rights,
conformity. If Lative cannot do so within a injury, damage or harm of any kind to any
reasonable time not to exceed 30 days, Customer person or entity.
shall be entitled to terminate the Agreement and
Lative will then refund to Customer any pre-paid, 7.6 Other than with respect to the express warranties
unused fees for the terminated portion of the set forth herein, the Lative Services are provided “as
Subscription Term. is” and all warranties express or implied,
representations, conditions and all other terms of
7.4 Specific Warranties. Lative further represents and any kind whatsoever implied by statute or common
warrants that: law, including those of non-infringement,
merchantability and fitness for a particular purpose,
7.4.1 the Lative Services shall be performed in a all are, to the fullest extent permitted by applicable
professional and workmanlike manner, and law, are hereby disclaimed and excluded by Lative
by qualified workers experienced in from this Agreement. Customer is solely responsible
performing the type of work contemplated; for determining the suitability of the Lative Services
for its use in light of any applicable legislation or
7.4.2 the Lative Services shall not infringe, regulations.
misappropriate, or violate any third-party’s
Intellectual property; 7.7 Notwithstanding the foregoing, Lative does not
warrant that Customer’s use of the Lative Services
7.4.3 the Lative Services are free and clear of will be uninterrupted or error-free or that the Lative
Services will operate in combination with third-party
any and all security interests, liens, claims,
services used by Customer save where otherwise
charges or other encumbrances;
agreed. The Lative Service may be subject to
limitations, delays and other problems inherent in
the use of the internet and electronic at Lative’s expense. Lative shall be given sole
communications. Lative is not responsible for any authority to defend or settle the claim, provided that
delays, delivery failures, or any other loss or Lative may not settle any claim without the
damage resulting from the transfer of data over Customer’s prior written consent (which shall not be
communications networks and facilities which are unreasonably withheld) if settlement would require
part of Customer’s system. In relation to the the Customer to admit fault or take or refrain from
Services, Lative is not responsible for any taking any action.
inaccuracies or errors arising as a result of incorrect
data provided by Customer or data provided by 9.3 If the use of the Lative Services by Customer has
Customer or any third-party which does not conform become, or in Lative’s opinion is likely to become,
to required input formats which are notified in writing the subject of any Infringement Claim, Lative may at
by Lative to Customer or as advised in the its option and expense
Documentation.
9.3.1 procure for Customer the right to continue
7.8 Customer may choose to use the Lative Services using and receiving the Lative Services as
with third-party platforms. Use of third-party set forth hereunder;
platforms is subject to Customer’s agreement with
the relevant provider and not this Agreement. Lative 9.3.2 replace or modify the Lative Services so
does not control and has no liability for third-party that they become non-infringing (with
platforms, including their security, functionality, comparable functionality); or
operation, availability or interoperability or how the
third-party platforms or their providers use Customer 9.3.3 if the options in Clauses 9.3.1 or 9.3.2 are
Data. If Customer enables a third-party platform with
not reasonably practicable despite
the Services, Lative may access and exchange
Customer Data with the third-party platform on reasonable efforts, then Customer or
Customer’s behalf. Lative may terminate this Agreement
within 15 days’ notice in writing and Lative
8. Data Protection shall provide a pro rata refund of any
prepaid fees for Lative Services for the
8.1 The Parties in the performance of this Agreement remaining unused period of the
shall: Subscription Term.
8.1.1 comply with any applicable Data Protection 9.4 Lative will have no liability or obligation with respect
Laws; and to any Infringement Claim if such Infringement Claim
is caused solely by:
8.1.2 not do, or omit to do, anything that would
cause the other Party to violate any 9.4.1 use of the Lative Services by Customer not
applicable Data Protection Laws. in accordance with this Agreement and
such Infringement Claim would not have
8.2 Lative shall, in the performance of its obligations arisen if not for such misuse;
under this Agreement and the provision of the Lative
Services, process personal data in accordance with 9.4.2 modification of the Lative Services by the
the Data Processing Agreement. Customer or any third-party without
Lative’s express written consent or not in
9. Indemnification accordance with the Documentation, and
such Infringement Claim would not have
9.1 Indemnity by Lative. Lative will indemnify
arisen if not for such modification;
Customer, its Affiliates, and their respective officers,
directors, employees, and agents (“Indemnified
Parties”), for any actual or threatened claim, 9.4.3 Customer Content; or
demand, suit, or proceeding (“Infringement Claim”)
made or brought against Customer or any of the 9.4.4 the combination, operation or use of the
Indemnified Parties by a third-party alleging that the Lative Services with other applications,
use of the Lative Services as permitted under this portions of applications, product(s),
Agreement infringes or misappropriates a patent, provided such Infringement Claim would
trade mark, copyright or trade secret or other have been avoided if not for such
intellectual property rights and any resulting losses, combination.
liabilities, damages or costs finally awarded against
the Customer or such Indemnified Parties (including 9.5 This clause 9 states the Customer’s sole and
reasonable legal fees) or agreed in settlement by exclusive rights and remedies, and Lative’s
Lative resulting from the Infringement Claim. (including Lative’s employees’, agents’ and sub-
contractors’) entire obligations and liability arising
9.2 The Indemnified Party shall promptly notify Lative in from an Infringement Claim. The foregoing does not
writing of any such claim, but the failure of any in any way limit any other remedy available to
Indemnified Party to provide such notice shall not Customer under the Agreement for any other
relieve Lative of its obligations hereunder, except to breaches of contract remedies and indemnification
the extent Lative is materially prejudiced by the that are not in relation to Infringement Claim.
Indemnified Party’s failure to provide such
notification. The Indemnified Party shall not make 9.6 Indemnity by Customer. Customer shall defend,
any admission, or otherwise attempt to compromise indemnify and hold harmless Lative from and
or settle the claim without Lative’s prior written against any claims, demands, actions, damages,
consent and provide reasonable co-operation to losses, liabilities, costs and expenses (including
Lative in the defence and settlement of such claim, reasonable legal fees) arising out of or relating to:
9.6.1 any third-party claim alleging that responsibility for results obtained from the use of the
Customer Content infringes or violates a Lative Services and the Documentation by the
third-party’s intellectual property rights; or Customer, and for conclusions drawn from such
use. Lative shall have no liability for any damage
9.6.2 Customer or its Authorised Users’ caused by errors or omissions in any information,
infringement or violation of Lative’s instructions or scripts provided to Lative by the
Intellectual Property Rights. Customer in connection with the Lative Services to
the extent caused as a direct result of Customer’s
9.7 Each party (as the “Indemnified Party”) shall information, instruction or scripts;
promptly notify the other party (as the
11. Trial and Beta Lative Services
“Indemnifying Party”) in writing of any claim,
demand, action or proceeding for which it seeks
Trial and Beta Lative Services. From time to time,
indemnification under this Agreement (a “Claim”);
Customer may have the option to use alpha or beta
provided that the failure of the Indemnified Party
Lative Services, products, features or
to provide such notice shall not relieve the
documentation offered by Lative free of charge for
Indemnifying Party of its obligations hereunder,
testing purposes (“Beta Lative Services”) or for
except to the extent that the Indemnifying Party is
Customer’s product evaluation purposes (“Trial
materially prejudiced by such failure. The
Purposes”) (Beta Lative Services and Trial Lative
Indemnified Party shall not make any admission of
Services, together “Free Lative Services”). Lative
liability, agree to any settlement, or otherwise
shall clearly mark such Free Lative Services. Any
compromise or dispose of any Claim without the
use of the Free Lative Services is at Customer’s sole
prior written consent of the Indemnifying Party.
risk. The Free Lative Services are provided “as is”
The Indemnified Party shall provide the
and without warranty of any kind. Notwithstanding
Indemnifying Party with reasonable cooperation
anything else in this Agreement, except to the extent
and assistance in the defence and settlement of
expressly stated in a Service Order, Lative provides
the Claim, at the Indemnifying Party’s expense.
no warranty, indemnity, SLA or support for free
The Indemnifying Party shall have the sole
Lative Services and its liability for free Lative
authority to defend or settle the Claim; provided
Services shall not exceed €100. For clarity,
that the Indemnifying Party shall not settle any
Customer is under no obligation to use any Free
Claim without the Indemnified Party’s prior written
Lative Services, and any such use by Customer will
consent (such consent not to be unreasonably
remain at Customer’s sole discretion.
withheld, conditioned or delayed) if such
Notwithstanding anything to the contrary in this
settlement would (a) require the Indemnified Party
Clause, Lative shall remain responsible for
to admit fault or liability, (b) impose any non-
confidentiality and data protection obligations
monetary obligation on the Indemnified Party, or
specified herein with respect to the Free Lative
(c) fail to include a full release of the Indemnified
Services.
Party from the Claim. The Indemnified Party may
participate in the defence of any Claim at its own
12. Termination and Effects of Termination
expense with counsel of its choosing; provided
that such participation shall not unreasonably 12.1 Term. This Agreement shall commence on the
interfere with the Indemnifying Party’s control of Effective Date and shall, unless otherwise
the defence.
terminated as provided in this Agreement, continue
for the period as set out in the applicable Service
10. Limitation of Liability
Order (the “Initial Subscription Term”). Thereafter,
this Agreement shall automatically renew for
10.1 Nothing in this Agreement limits or excludes liability
renewal periods of twelve (12) months each
of either Party in respect of any claims for death or
(“Renewal Period”) unless either party notifies the
personal injury caused by negligence, fraud or any
other party of termination, in writing, at least sixty
other liability which cannot be excluded or limited by
(60) days before the end of the Initial Subscription
law.
Term or any Renewal Period, in which case this
Agreement shall terminate upon the expiry of the
10.2 To the maximum extent permitted by applicable law,
applicable Initial Subscription Term or Renewal
Lative will not have any liability to Customer for any
Period or otherwise terminated in accordance with
loss of profits, loss of business, loss of revenue, loss
the provisions of this Agreement. The Initial
of data, reputational damage, or for any indirect,
Subscription Term together with any subsequent
special, incidental, punitive, or consequential
Renewal Periods shall constitute the “Subscription
damages however caused and under any theory of
Term”.
liability whether or not Lative has been advised of
the possibility of such.
12.2 Termination. Either Party may terminate any
Service Order and this Agreement upon written
10.3 Subject to clauses 10.1 and 10.2, to the maximum
notice to the other Party in the event:
extent permitted by applicable law, Lative’s total
aggregate liability arising out of or related to this
12.2.1 the other Party commits a material breach
Agreement or the Services under any theory of law
of this Agreement and either that breach is
(including liability for negligence or breach of
incapable of remedy or it fails to remedy
statutory duty or an indemnity claim) shall not
that breach within 30 days of receiving a
exceed the total amount of the Fees paid by
notice specifying the breach and requiring
Customer to Lative in the twelve (12) months
it to be remedied; and
preceding the claim under which the liability has
arisen.
12.2.2 the other Party is the subject of or suffers
an Insolvency Event.
10.4 Except as expressly and specifically provided in this
Agreement, the Customer assumes sole
12.3 Customer may terminate any Service Order and this illegal provision would be valid, enforceable or legal
Agreement for cause in the event that Lative fails to if some part of it were deleted, the provision shall
meet its obligations under the SLA in any two apply with whatever modification is necessary to
consecutive months during the Subscription Term. give effect to the commercial intention of the Parties.
12.4 Effects of Termination. On termination of this 13.3 Entire Agreement. This Agreement and any
Agreement, for any reason: documents referred to in it, constitute the whole
agreement between the parties and supersede any
12.4.1 All rights of access and licences granted
under this Agreement shall terminate and previous arrangement, understanding or agreement
the Customer shall cease all use of the between them relating to the subject matter they
Lative Services and/or the Documentation cover. Additional Service Orders may be agreed
immediately, provided however that Lative between the parties referencing this Agreement,
shall provide Customer access to the each of which shall form part of the Agreement.
Lative Platform, at no additional fees, for a
period of thirty (30) days following 13.4 Assignment. Either Party may assign on written
termination or expiration of the Agreement, notice all of its rights and obligations under this
for the sole purpose of exporting any stored Agreement to: (i) an Affiliate; (ii) a purchaser of all or
Customer Content; substantially all assets related to this Agreement; or
(iii) a third-party participating in a merger,
12.4.2 Lative shall return to Customer all the acquisition, sale of assets or other corporate
Customer Content and Customer reorganisation in which a Party is participating. Any
Confidential Information and following full attempt to assign this Agreement in violation of this
return of data to Customer, Lative shall provision shall be void and of no effect. This
permanently destroy Customer Content Agreement will bind and inure to the benefit of the
and Confidential Information. Following Parties and their respective permitted successors
Customer’s request, a certification of return and assigns.
and deletion of Customer data and
Confidential Information should be 13.5 Publicity. Neither Party may publicly announce this
returned to Customer; Agreement except with the other Party’s prior
consent or as required by applicable laws. However,
12.4.3 In the event of termination by Customer Lative may include Customer and its trademarks in
pursuant to Clause 12.2, Lative shall issue Latvia’s customer lists and promotional materials
to Customer a pro-rated refund of any but will cease this use at Customer’s written request.
prepaid but unutilised fees in respect of any
unused services at the date of termination; 13.6 No agency. Nothing in this Agreement is intended
and
to or shall operate to create a partnership or joint
12.4.4 any rights, remedies, obligations or venture between the Parties, or authorise either
liabilities of the parties that have accrued Party to act as agent for the other.
up to the date of termination, including the
right to claim damages in respect of any 13.7 Variation. No variation of this Agreement shall be
breach of the Agreement which existed at effective unless it is in writing and signed by the
or before the date of termination shall not parties’ authorised representatives.
be affected or prejudiced.
13.8 Notice. Any notice to be given by either Party for the
12.5 The following shall survive termination of this purposes of the Agreement shall be sent by
Agreement: mail/email to the contact details set out in the
Service Order. A notice delivered: (i) by hand shall
12.5.1 any provision and/or right that is stated, or be deemed to have been received when delivered
that by its nature is contemplated, to or if delivery is not in Business Hours, at 9am on the
survive termination; and first Business Day following delivery; (ii) by post if
correctly addressed by prepaid registered delivery
12.5.2 all clauses relating to intellectual property, shall be deemed delivered two days from the date
indemnities, limitations of liability, of posting and five days for pre-paid registered
confidentiality, privacy, governing law,
airmail; and (iii) by email shall be deemed to have
jurisdiction for disputes.
been received at 9.00am on the next Business Day
after transmission.
13. General
13.1 Waiver. No failure or delay by a Party to exercise 13.9 Force Majeure. Neither Party will be deemed in
any right or remedy provided under this Agreement breach hereunder for any cessation, interruption or
or by law, or a single or partial exercise of such right delay in the performance of its obligations due to
or remedy, shall constitute a waiver of that or any causes beyond its reasonable control (“Force
other right or remedy, nor shall it preclude or restrict Majeure Event”), including, without limitation,
the further exercise of that or any other right or earthquake, flood, or other natural disaster, act of
remedy. God, labour controversy (except such incidents
concerning only the relevant Party’s personnel), civil
13.2 Invalidity. If any provision (or part of a provision) of disturbance, terrorism, war (whether or not officially
this Agreement is found by any court or declared), cyber-attacks (e.g., denial of service
administrative body of competent jurisdiction to be attacks), or the inability to obtain sufficient supplies,
invalid, unenforceable or illegal, the other provisions transportation, or other essential commodity or
shall remain in force. If any invalid, unenforceable or service required in the conduct of its business, or
any change in or the adoption of any law, regulation, settle any dispute or claim that arises out of or in
judgment or decree. A Party whose performance is connection with this Agreement or its subject matter
affected by a Force Majeure Event shall give notice or formation (including non-contractual disputes or
to the other Party as soon as reasonably claims).
practicable, stating the nature of the Force Majeure
Event and the period of time the occurrence is Schedule 1
expected to continue. The affected Party shall use
commercially reasonable efforts to end the failure or Acceptable Use Policy
delay and minimise the effects of such Force
Majeure Event. If such failure or delay continues for This Acceptable Use Policy (“AUP”) describes actions that
a period of thirty (30) business days or more, the Lative prohibits when Customer uses and accesses the
non-affected Party may, as a sole remedy, terminate Lative Services. Customer agrees not to knowingly use,
this Agreement and/or any affected Service Order. and not to encourage or allow any other person or entity to
knowingly use, the Lative Services in prohibited manners,
13.10 Interpretation. For purposes hereof, “including” including but not limited to the following:
means “including, but not limited to”. All dates and
times set forth in this Agreement, any Service Order 1. Transmitting any material that infringes the
intellectual property rights or other rights of third
or any related document are in relation to Greenwich
parties, including but not limited to trademarks,
Mean Time (GMT), unless otherwise specified. In
copyrights or rights of publicity or otherwise
case that a translation of the Agreement, its violating, infringing or misappropriating the rights
Schedules or the Service Order is provided, the of any third party.
translation is made only out of courtesy and the
English version shall always prevail. 2. Transmitting any material that contains viruses,
trojan horses, worms or any other malicious,
13.11 Survival. Any obligations and duties which by their harmful, or deleterious programs or code.
nature extend beyond the expiration or termination
of this Agreement will survive the expiration or 3. Engaging in activities or transmitting through the
termination of this Agreement. Lative Services any information that is libelous or
defamatory or otherwise malicious or harmful to
13.12 Counterparts. This Agreement may be executed in any person or entity, or discriminatory based on
any number of counterparts, each of which when race, sex, religion, nationality, disability, sexual
executed and delivered shall constitute an original orientation or age.
of this Agreement, but all the counterparts shall
4. Adversely impacting the availability, reliability or
together constitute the same agreement. The stability of any Lative Services.
Parties acknowledge that they may use an
electronic signature process to sign this Agreement 5. Launching or facilitating, whether intentionally or
and agree to be bound by any such electronic unintentionally, a denial-of-service attack on any
signature which they have applied to the Lative Services or on any third party.
Agreement. The exchange of a fully executed
version of this Agreement (in counterparts or 6. Attempting to bypass or break any security
otherwise) by electronic transmission (including .pdf mechanism on any of the Lative Services or
or any electronic signature complying with using the Lative Services in any other manner
Regulation (EU) N°910/2014 (eIDAS Regulation), that poses a security or service risk to Lative, to
e.g. www.docusign.com) and any counterpart so any user of the Lative Services, to any of our
delivered shall be deemed to have been duly and respective customers or to their customers.
validly delivered and be valid and effective for all
purposes and shall be sufficient to bind the parties 7. Using the Lative Services in any manner that
to the terms and conditions of this Agreement. No may subject Lative or any third-party to liability,
exchange of original signatures is necessary. damages or danger.
13.13 Dispute Resolution. The Parties shall do their best 8. Using the Lative Services to engage in or in
acting in good faith to settle amicably any dispute, connection with fraudulent activity. Using your
controversy or claim arising out of or in connection account to engage in fraudulent activity with
with the existence, validity, construction, respect to third parties.
performance and termination of the Agreement (or
any terms thereof). Escalation to the senior 9. Promoting or engaging in illegal activities.
Harvesting or otherwise collecting information
management (or C-Suite) of the Parties shall be the
about others without their express consent.
preferred dispute resolution methodology. If senior
management (or C-Suite) cannot resolve the 10. Interfering with or disrupting networks connected
dispute within thirty (30) days of first notification of to the Lative Services or violating the regulations,
the dispute the matter shall be referred to the courts policies or procedures of such networks.
of Ireland in accordance with clause 13.14.
11. Violating or facilitating the violation of any local,
13.14 Governing Law and Jurisdiction. This Agreement state, federal, or foreign law or regulation,
and any disputes or claims arising out of or in including laws and regulations. Registering with
connection with it are governed by and construed in the Lative Services with an email of a throw-away
accordance with the laws of the Republic of Ireland.
The parties irrevocably agree that the courts of the
Republic of Ireland have exclusive jurisdiction to
email address provider or any other publicly unavailable to Customer’s Account. Scheduled
accessible email address. Maintenance shall not exceed four (4) hours in a
calendar month. Lative will use commercially
12. Using the Lative Services, or a component of the reasonable efforts to schedule Scheduled
Lative Services, in a manner not authorised by Maintenance for off-peak hours and to avoid any
Lative. Scheduled Maintenance causing unavailability of
the Service Components.
13. Creating a Lative account for the purpose of
competitive evaluation or research. 2.4 Lative will use commercially reasonable endeavours
to keep the operation of the Lative Services
14. Revealing your account password to others or uninterrupted and error free. Lative shall ensure
allowing use of your account by others. availability is at a minimum of 99.9% per month
excluding any Scheduled Maintenance and the
15. Failing to make a reasonable effort to protect other items listed at 1.4.1-1.4.9 below (“Service
your passwords and to secure resources against Availability”). Service Availability shall mean the
unauthorised use or access. You must configure percentage of time during each calendar month that
hardware and software in a way that reasonably he Lative Services are available and accessible to
prevents unauthorised users from accessing your Customer, calculated as follows:
account.
Service Availability = ((Total Minutes in Month -
Downtime Minutes) / Total Minutes in Month) × 100
This list of prohibited uses is provided by way of example
and should not be considered exhaustive. All The following shall be excluded from the
determinations related to violations of this Acceptable Use calculations (“Exclusions”):
Policy will be made by Lative in its sole discretion acting
reasonably. 2.4.1 Scheduled Maintenance;
Schedule 2 2.4.2 Third-Party infrastructure outages
(including Amazon Web Services (AWS)
Service Level Agreement service disruptions beyond Lative’s
reasonable control);
1. Definitions
2.4.3 Customer-caused outages or network
Terms not defined herein will have the meanings ascribed connectivity issues;
to them in the Terms of Service and Agreement entered into
between the Parties that incorporates this Service Level 2.4.4 Force Majeure events; or
Agreement by reference. In addition, the following terms,
when used in this Service Level Agreement will have the 2.4.5 Cyber security incidents requiring
following meanings: emergency maintenance.
“SLA Plan” means the level of availability and support Lative delivers the Services through Amazon Web
Lative Services that Customer selects in the Service Order Services infrastructure (“AWS”). Service Availability
(Gold, Silver or Bronze). calculations shall exclude any downtime directly
attributable to:
2. Service Availability and Performance.
2.4.6 AWS service outages or degradation as
2.1 Service Components. Lative provides this Service reported on the AWS service health
Level Agreement during the Subscription Term as dashboard;
measured by automated performance tests on each
of the service components set forth below (“Service 2.4.7 AWS planned maintenance activities;
Components”):
2.4.8 Internet backbone or DNS provider
2.1.1 Lative Frontend
failures affecting AWS regions; or
2.1.2 Lative API (Backend)
2.4.9 Third-party integrations or dependencies
2.2 Service Component Availability. The “Service required for AWS service delivery
Component Availability” shall be calculated as the
number of downtime hours of the specific service, 2.5 Lative will integrate AWS service status information
divided by the corresponding total number of hours into its status page and will not be deemed in breach
in that calendar month; provided that service issues of Service Availability commitments during periods
or outages relating to any Exclusions (as defined when AWS reports service degradation or outages
below) shall not be included in the calculation. Lative affecting the relevant AWS services or regions used
will report downtime hours and upon request of by Lative.
Customer will make the number, the times and the
affected Service Component available. 2.6 Lative shall use a reliable monitoring system to
measure availability, shall provide regular reporting
2.3 Scheduled Maintenance. “Scheduled of uptime status to Customer through
Maintenance” means maintenance that is https://lative.statuspage.io/ (to which Customer can
announced on https://lative.statuspage.io/ (or by subscribe), and such system shall be the sole basis
email if Customer subscribed to updates) at least for resolution of any dispute regarding Lative
three (3) business days in advance, during which compliance with the 99.9% Service Availability. If
any or all of the Service Components are the Service Availability is less than 99.9% in:
2.6.1 any two months during a six-month period; For Critical and High severity issues, Response
or Time is measured 24/7/365. For all other severity
levels, Response Time is measured within Business
2.6.2 any two consecutive months during the Hours only.
Subscription Term,
“Business Day” means a day other than a
Customer may as its sole and exclusive remedy Saturday, Sunday or public holiday in the Republic
terminate the applicable Service Order and this of Ireland when banks are open for business.
Agreement upon written notice to Lative. In the “Business Hours” means 9.00 am to 5.00 pm local
event of such termination, Lative will issue a pro- Irish time, each Business Day.
rated refund for unused Services up to the date of
termination. “Resolution Time” means the period of time in
which Lative resolves the Customer’s Support
3. Support Ticket, which may include providing a fix,
workaround, or other commercially reasonable
3.1 Language. Lative will provide the Support Lative solution, measured from the time the Support Ticket
Services to Customer as set out below. Support is was submitted.
provided in English as the sole language.
For Critical and High severity issues, Resolution
3.2 Ticket Submission. Customer’s Authorised Users Time is measured 24/7/365. For all other severity
may submit a ticket (a “Support Ticket”) that shall levels, Resolution Time is measured within
contain a detailed description of the issue to Lative. Business Hours only.
Lative will respond to each Support Ticket in
accordance with this Service Level Agreement and The Response Time and Resolution Time to a
will use commercially reasonable efforts to promptly Support Ticket depends on the Severity Level
resolve each Support Ticket. Actual resolution time determination and the SLA Plan selected described
will depend on the nature of the Support Ticket and herein.
the resolution itself. A resolution may consist of a fix,
workaround, new feature request, delivery of SLA Plan
information or other commercially reasonable
solution of the issue. Priority Response Resolution
Times Times
3.3 Lative may, from time to time, develop additional Critical: Complete 2 hours 4 hours
methods for Customer to submit a Support Ticket service outage
and will make information regarding such methods affecting all users
available to the Customer.
3.4 Multiple Support Tickets submitted related to High: Major 4 hours 8 hours
substantially the same occurrence or subject matter functionality
shall be deemed a single Support Ticket unavailable or
severely degraded
3.5 Scope of Support. Support covers:
Medium: Partial 24 hours 48 hours
3.5.1 development and production issues for the service
Lative Service Components; degradation or
individual user
3.5.2 informational and implementation issues
questions about the Lative Service and its
features; and Low: Minor issues 48 hours 5 Business
or general inquiries Days
3.5.3 troubleshooting operational problems with
the Lative Service Components.
Support does not include issues resulting from the
Exclusions or code development, debugging or
fixing of Customer’s or third party’s software that
interacts with the Lative Service Components.
Lative may assist Customer and its third-party
providers in diagnosing and resolving issues or
errors but Customer acknowledges that these
matters are outside of Lative’s support obligations
3.6 Lative Support Commitment. Lative will respond
to Support Tickets based on the Response Times
below. For Critical and High severity issues, Lative
will provide support 24/7/365 (including outside
Business Hours).
“Response Time” means the period of time in which
Lative responds to Customer after submission of a
Support Ticket.
3.7 Customer Support Commitment. Lative’s
provision of Support is subject to Customer
providing reasonable support and assistance to
Lative as follows based on the Severity Level of
the Support Ticket: Severity Level Customer
Support Commitment:
Severity 1 – Critical. Customer’s technical team or
technical personnel shall remain accessible
available via phone or chat from the time Support
Ticket is submitted until issue is resolved; and
Severity 2 – High. Customer’s technical team or
technical personnel shall respond to Lative’s
requests for additional information and shall
implement recommended solution in a timely
manner.
3.8 Lative is not responsible for any delays, failures,
deficiencies or non-conformities with regards to
Support if such delays, failures, deficiencies or
non-conformities are due to a delay or failure by
Customer to reasonably comply with their
obligations set forth above. Agreed deadlines (if
any) will be automatically extended by the amount
of time during which Customer is not in full
compliance with these obligations.
12