HOOK TERMS OF BUSINESS
1 Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these terms.
“Affiliate” each Party’s holding companies, subsidiaries and its holding companies’ subsidiaries from time to time (and the terms “holding company” and “subsidiary” are as defined in section 1159 Companies Act 2006).
“Authorised Users” those employees and independent contractors of the Client who are authorised to use the Platform under the Contract.
“Business Day” a day other than a Saturday, Sunday or public holiday in England.
“Order Form” the commercial details form attached to these terms.
“Charges” the Licence Charges.
“Client” the person, firm or company set out in the Order Form under Customer.
“Client Data” information or data inputted into the Platform by the Client, any Authorised User, or Hook on behalf of the Client, or which is otherwise provided or disclosed by or on behalf of the Client or an Authorised User to Hook, or accessible by or visible to Hook, via the Platform.
“Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or would be considered confidential by a reasonable businessperson or is identified as confidential in clauses 10.5 or 10.6.
“Contract” the contract between Hook and the Client for the Client’s use of the Platform which is made up of the Order Form and these terms.
“Contract Year” means any 12-month period commencing on the Effective Date or on any anniversary of the Effective Date.
“Core Platform” Hook’s core proprietary software platform for managing customer engagement and loyalty with subscription products.
“Deliverables” all products and materials developed or produced by or on behalf of Hook in relation to the Client’s use of or access to the Platform in any media, including reports and technical workflows generated through the Platform, and any computer code, computer programs, data, diagrams, reports and specifications (in each case including all preparatory materials and all drafts).
“Effective Date” unless listed on the Order Form, the earlier of: (i) the date of the Contract; and (ii) the Client accessing and/or using the Platform.
“Hook” Hook Technology Limited, a company registered England and Wales with company number 12362866, whose registered office is at 80 Cheapside, London EC2V 6EE.
“Initial Term” the period from the Effective Date and thereafter for the number of months set out in the Order Form (or, if not set out in the Order Form, 12).
“Insights” means any insights, ideas, concepts, requirements, requests, suggestions or recommendations provided by the Client to Hook in relation to the Platform.
“Intellectual Property” all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights and moral rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent right or form of protection in any part of the world.
“Licence Charges” the licence charges in the Order Form.
“Limitations” as defined in clause 4.2.
“Normal Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day.
“Parties” Hook and the Client who are each a “Party”.
“Platform” the Core Platform in machine-readable object code form only, including any error corrections, updates, upgrades, modifications and enhancements provided from time to time by Hook.
”Platform Materials” works of authorship, products, materials, designs, graphical works, images, discoveries, inventions, research, processes, systems, programs (including software programs), algorithms, formulae, component lists, operating and training manuals, source code to software, databases, instructions, process descriptions, know-how, data, diagrams, charts, results, reports, information, methodologies, concepts, models, prototypes, plans, specifications and studies and other material created, produced or developed comprising, contained within or related to the Platform (recorded in any format).
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be construed accordingly.
1.2 A reference to a statute or statutory provision is a reference to it as it is in force from time to time and includes all subordinate legislation made under that statute or statutory provision from time to time.
1.3 References to clauses and schedules are to the clauses and schedules of these terms and references to paragraphs are to the paragraphs of the relevant schedule.
2 Application of terms
2.1 These terms shall:
2.1.1 apply to and be incorporated in the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Hook unless in writing and signed by a duly authorised representative of Hook.
3.1 The Client undertakes and confirms to Hook that neither the Client nor any of its’ Affiliates will at any time during the term of this Contract and for a period of 36 months afterwards develop, promote, supply or sell (whether directly or indirectly) any product or service which is similar to, or which competes with, the Platform.
4 Platform Licence
4.1 In relation to the Platform:
4.1.1 Hook grants to the Client on and subject to the Contract, a non-exclusive, non-transferable right, without the right to grant sub-licences, to access and use (and to permit the Authorised Users to access and use) the Platform for the term of the Contract, in each case solely for the Client’s internal business operations;
4.1.2 the Client shall not store, distribute, introduce or transmit to or through the Platform:
(a) any Virus,
(b) any Vulnerability; or
(c) any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
4.1.3 the rights provided under this clause 4.1 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client;
4.1.4 the Client shall not:
(a) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Platform except to the extent expressly set out in the Contract or as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; or
(c) access all or any part of the Platform in order to build a product or service which competes with the Platform; or
(d) except as expressly permitted by the Contract, transfer, temporarily or permanently, any of its rights under the Contract; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 4.1; and
4.1.5 the Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and shall notify Hook promptly of any such unauthorised access or use.
4.2 The Client’s access and use of the Platform is subject to the limitations set out in the Order Form, including limitations as to the number of Authorised Users that can access and use the Platform (“Limitations”).
4.3 In relation to Authorised Users:
4.3.1 the Client shall maintain a written list of current Authorised Users of the Platform, and shall provide such list to Hook as may be reasonably requested by Hook from time to time; and
4.3.2 the Client shall ensure that each Authorised User keeps a secure password for their use of the Platform and that such password is changed no less frequently than monthly and that each Authorised User keeps their password confidential.
4.4 Hook may audit the Client’s usage of the Platform and the Client shall provide Hook with such access, assistance and co-operation as Hook reasonably requests to conduct the audit. Audits may be conducted no more than once per quarter, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Client’s normal conduct of business;
4.5 If the Client’s use of the Platform exceeds the Limitations in the Order Form, the Client shall, without prejudice to Hook’s other remedies, pay Hook for such additional usage at Hook’s prevailing rates from the date the Limitations were first exceeded.
4.6 The Client shall ensure that each Authorised User complies with the terms of the Contract and shall be responsible for any Authorised User’s breach of the Contract as though the Authorised User’s acts and/or omissions were those of the Client.
5 Hook’s obligations
5.1 Hook does not warrant that:
(a) the Platform will be free from Vulnerabilities; or
(b) the Client’s use of the Platform and/or Deliverables will:
(i) meet the Client’s requirements (whether or not known to Hook before or after the Effective Date); or
(ii) be uninterrupted or error-free; and
5.1.2 Hook is not responsible for any delays, delivery failures, or any other loss or damage resulting from the Client’s use of hardware, software or services provided by any person other than Hook, including inadequate bandwidth, and the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Platform and Deliverables may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
5.1.3 the Client acknowledges that the Platform are provided to the Client on an “as is” basis.
5.2 Hook shall use commercially reasonably endeavours to perform routine, planned maintenance of the Platform that may require interruption of the Platform outside Normal Business Hours. In addition, Hook may perform emergency maintenance of the Platform that may require interruption of the Platform at any time.
5.3 The Contract shall not prevent Hook from entering into similar contracts with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
5.4 Hook may make error corrections, updates, upgrades, modifications and enhancements to the Platform at any time and will update the Platform Specification as appropriate.
6 Client’s obligations
6.1 The Client shall:
6.1.1 provide Hook in a timely manner with:
(a) all necessary co-operation and assistance in relation to the Contract;
(b) such information and data as are reasonably required by Hook for the purposes of the Contract; and
(c) security access information and any software interfaces to the Client’s other business applications as is reasonably required by Hook for the purposes of the Contract;
6.1.2 ensure that any information provided by or on its behalf (including by an Authorised User) to Hook (and in each case whether via the Platform or otherwise) is complete and accurate in all respects and not misleading;
6.1.3 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract; and
6.1.4 carry out all its responsibilities in a timely and efficient manner. In the event of any delays in the Client’s performance of its obligations, Hook may adjust any agreed timetable or delivery schedule as reasonably necessary and the Client shall pay Hook the Charges on the date(s) Hook (acting reasonably) determines they would have been paid had the delay not occurred.
6.2 The Client warrants to Hook that it is authorised to supply the Client Data to Hook and to grant the licences in clauses 9.7 and 9.8, and that the supply of such Client Data and the grant of such licences, does not conflict with any other agreement to which it is party.
7 Client Materials
7.1 The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
7.2 The Client is solely responsible for backing up its Client Data and Hook shall have no liability to the Client for any loss of or damage to any Client Data.
8 Charges and payment
8.1 The Client shall pay the Charges to Hook in accordance with this clause 8.
8.2 All amounts and charges stated or referred to in the Contract are exclusive of value added tax, which shall be added to Hook’s invoice(s) at the appropriate rate.
8.3 Unless set out otherwise in the Order Form, Hook shall invoice the Client for:
8.3.1 the Licence Charges annually in advance on the Effective Date and on each anniversary of the Effective Date.
8.4 Unless set out otherwise in the Order Form, the Client shall pay each invoice submitted by Hook:
8.4.1 Immediately upon the invoice date unless otherwise outlined in the order form; and
8.4.2 in full and in cleared funds to a bank account nominated in writing by Hook,
and time for payment shall be of the essence of the Contract.
8.5 The Client shall reimburse to Hook upon Hook’s request, any out-of-pocket expenses incurred by Hook, subject to the prior approval in writing of such expenses by the Client (such approval not to be unreasonably withheld or delayed).
8.6 If Hook has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of Hook:
8.6.1 Hook may, without liability to the Client, disable the Client’s and/or any Authorised User’s password, account and access to all or part of the Platform while the invoice(s) concerned remain unpaid; and
8.6.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, or at an annual rate of 3% where the then current base lending rate of the Bank of England is below zero, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.7 Hook may increase the Licence Charges provided Hook gives the Client at least 45 days’ notice of the increase and the increase takes effect after the end of the Initial Term.
9 Proprietary rights
9.1 The Client acknowledges and agrees that Hook and/or its licensors own all Intellectual Property Rights in and to the Platform and the Platform Materials.
9.2 The Client acknowledges that all Insights shall be owned by Hook and hereby irrevocably assigns to Hook absolutely and with full title guarantee (including by way of present assignment of future rights) all right, title and interest in and to the Intellectual Property in the Insights.
9.3 The Client warrants to Hook on an ongoing basis that it is the exclusive owner of all Intellectual Property in and to the Insights, that they have not been copied wholly or partly from any other source, and that they are validly assigned to Hook under clause 9.2.
9.4 The Client agrees to perform (or procure the performance of) all further acts and things, and to execute and deliver (or procure the execution or delivery of) all further documents, required by law or which Hook requests, to vest in Hook the full benefit of the right, title and interest in and to the Intellectual Property in the Insights.
9.5 Hook grants to the Client, subject to the receipt by it of all Charges and other sums due to it under the Contract, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (excluding the Client Data) for the purpose of receiving, accessing and using the Platform in its internal business operations.
9.6 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 9.5 to any person.
9.7 The Client grants to Hook a fully paid-up, non-exclusive, worldwide, royalty-free, non-transferable licence, together with the right to grant sublicences, to:
9.7.1 use, copy and modify any Client Data; and
9.7.2 use and interface with the Client’s networks, systems and software,
for the term of the Contract for the purpose of providing the Platform and Deliverables to the Client.
9.8 The Client grants to Hook a fully paid-up, non-exclusive, worldwide, royalty-free, transferable, perpetual, irrevocable licence, together with the right to grant sublicences, to use the Client Data to develop and improve Hook’s own products and services provided that, after the termination of the Contract and unless agreed otherwise with the Client, the Client Data is used in anonymous form.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the receiving party’s lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clause 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
10.3 Each party shall ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, contractors or agents in violation of the terms of the Contract.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible, and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Client acknowledges that the Platform, the Platform Materials, the results of any performance tests of the Platform, are the Confidential Information of Hook.
10.6 Hook acknowledges that the Client Data is the Confidential Information of the Client (without prejudice to clause 9.8).
10.7 No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except:
10.7.1 as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction; and
10.7.2 Hook may refer to the Client in Hook’s marketing materials and may give a general description of the relationship between Hook and the Client, provided Hook does not disclose any of the Client’s Confidential Information.
10.8 Each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of this clause 10 by the other party. Accordingly, each party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this clause 10.
10.9 This clause 10 shall survive the expiry or termination of the Contract.
11 Data protection
11.2 The Parties shall comply with their obligations in Schedule 1.
12.1 Subject to clause 12.2, the Client shall defend, indemnify and hold harmless Hook against any claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
12.1.1 the Client’s (or the Authorised Users’) use of the Platform or Deliverables; and/or
12.1.2 the use by Hook of the Client Data pursuant to the Contract; and/or
12.1.3 the breach by the Client of its warranty given in clause 6.2.
12.2 The indemnity given by the Client in clause 12.1 shall apply only if:
12.2.1 the Client is given prompt notice of any such claim;
12.2.2 Hook provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
12.2.3 the Client is given sole authority to defend or settle the claim.
12.3 Hook shall defend the Client against any claim that the use of the Platform in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in final or un-appealed judgment
or settlement of such claims, provided that:
12.3.1 Hook is given prompt notice of any such claim;
12.3.2 the Client provides reasonable co-operation to Hook in the defence and settlement of such claim, at Hook’s reasonable expense; and
12.3.3 Hook is given sole authority to defend or settle the claim and the Client makes no admission, compromise or settlement of the claim.
12.4 In the defence or settlement of any claim, Hook may procure the right for the Client and Authorised Users to continue using the Platform (or part thereof), or replace or modify the Platform (or part thereof) so that it (or the relevant part) becomes non-infringing or, if such remedies are not in Hook’s opinion reasonably available, terminate the Contract with immediate effect, in either case without liability to the Client. Hook shall have no liability if the alleged infringement is based on:
12.4.1 a modification of the Platform (or part thereof) by anyone other than Hook; or
12.4.2 the Client’s use of the Platform (or part thereof) in a manner contrary to the instructions given to the Client by Hook; or
12.4.3 the Client’s use of the Platform (or part thereof) after notice of the alleged or actual infringement from Hook or any appropriate authority.
12.5 The foregoing and clause 13 state the Client’s sole and exclusive rights and remedies, and Hook’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13 Limitation of liability
13.1 This clause 13 sets out the entire financial liability of Hook (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
13.1.1 arising under or in connection with the Contract;
13.1.2 in respect of any use made by the Client, the Platform, and/or the Deliverables or any part of them; and
13.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
13.2 The parties agree that:
13.2.1 the Client assumes sole responsibility for results obtained from the use of the Platform, the Deliverables by the Client and Authorised Users, and for conclusions drawn from such use;
13.2.2 Hook shall have no responsibility or liability for any loss or damage caused by errors or omissions in any Client Data or any other information, instructions or scripts provided to it by the Client in connection with the foregoing, or any actions taken by Hook at the Client’s direction;
13.2.3 Hook shall have no responsibility or liability for the acts or omissions of any third parties appointed by the Client;
13.2.4 Hook shall have no responsibility or liability for the application programming interface or other interface with any third parties appointed by the Client; and
13.2.5 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
13.3 Nothing in this Contract excludes the liability of either party for death or personal injury caused by negligence, or fraud or fraudulent misrepresentation, or for any other liability that cannot be lawfully limited or excluded.
13.4 Subject to clause 13.3:
13.4.1 Hook shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, indemnity, misrepresentation, restitution or otherwise for any:
(a) loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and/or similar losses or pure economic loss; or
(b) special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
13.4.2 Hook’s total aggregate liability in contract, indemnity, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract, shall be limited to the total Charges paid and payable by the Client to Hook during the Contract Year in which the claim arose.
14 Term and termination
14.1 The Contract shall commence on the Effective Date and shall continue for the Initial Term unless terminated in accordance with the Contract.
14.2 At the end of the Initial Term, the contract will renew for a period of 12 months unless either party terminates the Co
ntract in line with clause 14.3
14.3 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving not less than 60 days written notice prior to the end of the Initial Term.
14.5 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.5.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.5.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.5.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
14.5.4 the other party is bankrupt (whether voluntarily or involuntarily by a petition filed that is not discharged or otherwise resolved to the terminating party’s reasonable satisfaction within 30 days of such filing), insolvent or causes an assignment for the benefit of creditors or if a resolution is passed or an order is made for the winding up of the other party (otherwise than for the purpose of solvent amalgamation or reconstruction) or if the other party becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of the other party’s property, or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events aforementioned.
14.6 On expiry or termination of the Contract for any reason:
14.6.1 the Client’s rights to access and use the Platform shall immediately terminate, and the Client shall immediately cease and procure that all Authorised Users cease, all use of the Platform;
14.6.2 the licences granted by Hook to the Client pursuant to clause 9.5 shall immediately terminate and the Client shall make no further use of the Deliverables;
14.6.3 the licence granted by the Client to Hook pursuant to clause 9.7 shall immediately terminate and, except as permitted by clause 9.8, Hook shall make no further use of the Client Data;
14.6.4 the Client shall immediately pay to Hook all of its outstanding unpaid invoices and interest;
14.6.5 subject to clause 14.6.6, each party shall return to the oth
er and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
14.6.6 Hook will, except where copies are retained under clause 9.8, and except where Hook has agreed in writing to return the same, delete or otherwise destroy or dispose of the Client Data in its possession or control; and
14.6.7 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
14.7 Clauses 3, 9.8, 10, 12, 13, 14.6 and 16 shall survive the termination of the Contract.
15.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Contract (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
16.1 Force Majeure. Hook shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Hook or any other party), failure of a utility service or telecommunications network, act of God, pandemic, war, civil commotion, malicious damage, compliance with any law or governmental order or rule, accident, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
16.2 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 Severance. If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.5 Entire Agreement.
16.5.1 The Contract constitutes the entire contract between the parties and supersedes and extinguishes all previous contracts, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.5.2 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
16.6 No partnership. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the employee or agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.7.1 The Client shall not, without the prior written consent of Hook, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.7.2 Hook may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract and the Client shall enter into such agreements as Hook may reasonably request to give effect to such assignment, transfer, charge, sub-contract or dealing.
16.8 Third Party Rights. The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.9.1 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Order Form, or to such other email address as may have been notified by that party for such purposes.
16.9.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post or delivery. A notice sent by email shall be deemed to have been received at the time of transmission.
16.10 Governing law and Jurisdiction.
16.10.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
16.10.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 Data Protection
The following definitions shall additionally apply in this Schedule:
“Agreed Purposes” the performance of the Contract.
“Controller”, “processor”, “data subject”, “personal data breach”, “processing” “appropriate technical and organisational measures” as defined in the Data Protection Legislation.
“Data Protection Legislation” the Data Protection Act 2018, the UK GDPR (as defined in section 3(11) of the Data Protection Act 2018) and any other applicable legislation related to the processing of personal data from time to time.
“personal data” as defined in the Data Protection Legislation and means personal data processed by Hook on behalf of the Client under the Contract.
2. Personal data types and processing
2.1 The Parties acknowledge that as between them, the Client is the controller and Hook is the processor of the personal data.
2.2 The Client retains control of the personal data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Hook.
2.3 The subject matter and duration of the processing, the nature and purpose of the processing, the types of personal data and the categories of data subjects are set out in Annex A.
3. Hook’s obligations
3.1 Hook will only process the personal data to the extent, and in such a manner, as is necessary for the Agreed Purposes in accordance with the Client’s written instructions and / or the Contract. Hook will not process the personal data for any other purpose or in a way that does not comply with the Contract or the Data Protection Legislation.
3.2 Hook must notify the Client without delay if, in its opinion, the Client’s instruction would not comply with the Data Protection Legislation.
3.3 Hook must promptly comply with any Client request or instruction requiring Hook to amend, transfer, delete or otherwise process the personal data, or to stop, mitigate or remedy any unauthorised processing.
3.4 Hook will maintain the confidentiality of all personal data and will not disclose personal data to third parties unless the Client specifically authorises the disclosure, or as required to perform the Contract, or as required by law.
3.5 Hook will, subject to the Client reimbursing its reasonable costs and expenses, reasonably assist the Client with meeting the Client’s compliance obligations under the Data Protection Legislation, taking into account the nature of Hook’s processing and the information available to Hook, including in relation to security of processing, data subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
4. Hook’s staff
4.1 Hook shall ensure that all persons authorised by Hook to process the personal data are informed of the confidential nature of the personal data and are bound by confidentiality obligations and use restrictions in respect of the personal data.
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, Hook shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data, including the pseudonymisation and encryption of personal data; the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and a process for regularly testing, assessing and evaluating the effectiveness of security measures.
5. Personal data breach
5.1 Hook will notify the Client without undue delay if it becomes aware of:
5.1.1 any accidental, unauthorised or unlawful processing of the personal data; or
5.1.2 any personal data breach related to the personal data.
5.2 Where Hook becomes aware of any matter within the scope of paragraph 5.1, it shall also provide the Client without undue delay with the following information:
5.2.1 a description of the nature of the matter, including the categories and approximate number of both data subjects and personal data records concerned; and
5.2.2 a description of the measures taken, or proposed to be taken to address the matter, including measures to mitigate its possible adverse effects.
5.3 Promptly following any accidental, unauthorised or unlawful personal data processing or personal data breach related to the personal data, the parties will co-ordinate with each other to investigate the matter. Hook will reasonably assist and co-operate with the Client in its handling of the matter.
5.4 Hook shall not inform any third party of any personal data breach related to the personal data without first obtaining the Client’s prior written consent, except when required to do so by law.
6. Cross-border data transfers
6.1 Hook shall not transfer any personal data outside the United Kingdom and the European Economic Area without the Client’s prior written consent (except no consent shall be needed where Hook is transferring personal data back to the country or territory from which it originated).
7. Sub processors
7.1 Hook may not appoint a third party (“Sub-processor”) to process the personal data without the prior written consent of the Client and only if:
7.1.1 Hook enters into a written contract with the Sub-processor that contains terms substantially the same as those set out in this Schedule; and
7.1.2 the Sub-processor's contract terminates automatically on termination of the Contract for any reason.
7.2 Those Sub-processors approved as at the commencement of this Contract are in Annex A.
7.3 Where the Sub-processor fails to fulfil its obligations under such written contractor, Hook remains fully liable to the Client for the Sub-processor’s performance of its obligations.
7.4 The Client agrees to Hook supplementing its own workforce for example through the use of independents contractors and agency workers.
8. Complaints, data subject requests and third-party rights
8.1 Hook shall, subject to the Client reimbursing its reasonable costs and expenses, take such technical and organisational measures as may be appropriate, and provide such information to the Client as the Client may reasonably require, to enable the Client to comply with:
8.1.1 the rights of data subjects under the Data Protection Legislation; and
8.1.2 information or assessment notices served on the Client by any supervisory authority under the Data Protection Legislation.
8.2 Hook shall notify the Client without delay if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the personal data.
8.3 Hook shall notify the Client within 5 Business Days if it receives a request from a data subject for access to their personal data or to exercise any of their related rights under the Data Protection Legislation.
8.4 Hook shall, subject to the Client reimbursing its reasonable costs and expenses, give the Client all reasonable co-operation and assistance in responding to any complaint, notice, communication or data subject request.
8.5 Hook must not disclose the personal data to any data subject or to a third party other than at the Client’s written request or instruction, as provided for in the Contract or as required by law.
9. Data return and destruction
9.1 On termination or expiry of the Contract for any reason, and without prejudice to clause 9.8, Hook will securely delete or destroy or, if directed in writing by the Client, return and not retain, all or any personal data related to the Contract in its possession or control.
9.2 If any law, regulation, or government or regulatory body requires Hook to retain any documents or materials that Hook would otherwise be required to return or destroy, it will notify the Client in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
10.1 Hook shall provide the Client with all information reasonably requested by the Client to demonstrate compliance with the Contract. Hook shall permit the Client to audit Hook’s compliance with this Contract, on at least 30 days' notice, during the term of the Contract provided such audit is not carried out more than once each year, the Client enters into such confidentiality undertakings as Hook may reasonably require and the audit causes minimum disruption to Hook’s business.
10.2 The Client shall reimburse Hook for its reasonable costs and expenses incurred in relation to paragraph 10.1.
Data Processing Details
Data exporter: Hook
Data importer: Customer
Subject matter and purpose
The subject matter and purpose of the processing is the provision of the Services under the Contract.
The duration of the processing is for the term of the Contract and for a short period afterwards to allow the data to be returned to the Client or deleted.
The nature of the processing includes the receipt, storage, transferring, using, analysing, returning and deleting the data.
Types of Personal Data
- Names, email addresses, platform usage data, communication data relating to meetings
Categories of Data Subjects
- Employees of the client and employees of the client’s customers ( i.e. users of the client’s platform)
Sensitive data transferred: none
Frequency of transfer: ongoing regular transfers throughout the term of the Contract.
1. Amazon is our hosting provider and we use their facility in Ireland
2. Google is our e-mail provider, based in United States
3. Slack is used for internal messaging, based in United States
4. Atlassian is used for work tracking based in Australia, United States
5. Hubspot is used for managing our customers and contracts, based in United States
6. Datadog is our cloud data management and analytics platform, based in the United States
This page is public and kept updated as it changes:
Technical and organisational measures to ensure the security of the data: This page is public and kept updated as it changes: