Terms

Terms and Conditions

Please read these Terms and Conditions carefully. We will ask for your express agreement to these Terms and Conditions, along with the accompanying Services Order Form, before we begin providing Services to you,

1. Definitions

1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:

“Access Credentials” means the usernames, passwords and any other credentials enabling access to the TRACE Services;

“Additional Services” means any training, configuration, consultancy or other professional services that Event Measurement Limited (EML) provides or has an obligation to provide to the Customer under or in relation to the Agreement;

“Agreement” means a contract between the parties incorporating these Terms and Conditions and the Services Order Form, and any amendments to that contract from time to time;

“Agreement Period” means a period of 12 months, or such alternative period as may be specified in the Services Order Form, beginning on:

(a) the Effective Date; or

(b) at the end of an Agreement Period;

“Aggregated Data” means data generated by the TRACE Platform, based on the Report Data combined with other data in the control of Event Measurement Limited (EML);

“Charges” means:

(a) the charges specified in the Services Order Form or elsewhere in the Agreement; and

(b) such other charges as may be agreed in writing by the parties from time to time;

“Confidential Information” means the Customer Confidential Information and the Event Measurement Limited (EML) Confidential Information;

“Customer” means the person or entity identified as such in the Services Order Form;

“Customer Confidential Information” means:

(a) any information disclosed by the Customer to Event Measurement Limited (EML) at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked or described as “confidential”; or (ii) should have been reasonably understood by Event Measurement Limited (EML) to be confidential; and

(b) the Input Data,

but excluding the Aggregated Data;

“Customer Indemnity Event” has the meaning given to it in Clause 18.3;

“Customer Personal Data” means any Personal Data that is processed by Event Measurement Limited (EML) on behalf of the Customer in relation to the Agreement;

“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;

“Effective Date” means the date upon which the parties execute a hard-copy or digital Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by Event Measurement Limited (EML) on Event Measurement Limited (EML) website, the date upon which Event Measurement Limited (EML) sends to the Customer an order confirmation;

“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);

“Input Data” means all data relating to the Customer and/or third party customers of the Customer that is uploaded to, copied to or stored on the TRACE Platform by the Customer or any User;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);

“EML” means Event Measurement Limited (EML), a company incorporated in England and Wales (registration number 13575351) having its registered office at 167-169 Great Portland Street, 5th Floor, London, W1W 5PF

“Event Measurement Limited (EML) Confidential Information” means:

(a) any information disclosed by Event Measurement Limited (EML) to the Customer at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked or described as “confidential”; or (ii) should have been reasonably understood by the Customer to be confidential; and

(b) the financial terms of the Agreement to the extent negotiated by the parties and not reflecting Event Measurement Limited (EML) standard published pricing;

“Event Measurement Limited (EML) Indemnity Event” has the meaning given to it in Clause 18.1;

“Personal Data” means personal data under any of the Data Protection Laws;

“Report Data” means all data generated by the Platform, based in whole or part upon the Input Data, and available to the Customer by means of the customer dashboard accessible via the TRACE Services (but excluding analytics data relating to the use of the TRACE Platform and server log files);

“Services” means any services that Event Measurement Limited (EML) provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

“Services Order Form” means an online order form published by Event Measurement Limited (EML) and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, as updated by the parties from time to time in accordance with these Terms and Conditions;

“Subscription Package” means the Customer’s subscription package (including a specified number or range of active User licences) as specified on the website of Event Measurement Limited (EML) and/or agreed in the Services Order Form;

“Support Services” means:

(a) provision of access to online training videos (which may be provided through the TRACE Services);

(b) provision of access to regular online training sessions open to all customers of Event Measurement Limited (EML); and

but shall not include the provision of bespoke or Customer-specific training services, which shall only be provided if the parties have agreed to the provision of such training as Additional Services;

“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that Event Measurement Limited (EML) agrees in writing shall be supported;

“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

“TRACE Platform” means the platform managed by Event Measurement Limited (EML) and used by Event Measurement Limited (EML) to provide the TRACE Services, including the application and database software for the TRACE Services, the system and server software used to provide the TRACE Services, and the computer hardware on which that application, database, system and server software is installed;

“TRACE Services” means hosted software-based services provided by Event Measurement Limited (EML) to the Customer using the TRACE Platform;

“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

“User” means an individual user of the TRACE Services, being either:

(a) an account administrator; or

(b) a person that has been allocated or is otherwise using a standard TRACE Services user account; and

“User Interface” means the interface for the TRACE Services designed to allow Users to access and use the TRACE Services.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 21 or any other provision of these Terms and Conditions.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.

3. TRACE Services

3.1 Event Measurement Limited (EML) shall provide, or shall ensure that the TRACE Platform will provide, to the Customer upon the Effective Date or promptly thereafter, the Access Credentials necessary to enable the Customer to access and use the TRACE Services.

3.2 Event Measurement Limited (EML) hereby grants to the Customer a worldwide, non-exclusive licence to:

(a) use the TRACE Services by means of the User Interface during the Term; and

(b) to export the Report Data from the TRACE Services during the Term and, during the Term and thereafter, to copy, edit, publish and otherwise use that exported Report Data,

in each case for the business purposes of the Customer within the limits specified in the Subscription Package.

3.3 The licence granted by Event Measurement Limited (EML) to the Customer under Clause 3.2 is subject to the following limitations:

(a) the User Interface may only be used through a Supported Web Browser;

(b) the User Interface may only be used by those active Users specified by an administrative user via the Platform Services (providing that an administrative user may change and reallocate active Users within the agreed licence numbers); and

(c) the Platform Services may only be used with respect to the number of events specified in the Services Order Form per 12-month period.

3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by Event Measurement Limited (EML) to the Customer under Clause 3.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the TRACE Services;

(b) the Customer must not republish or redistribute any content or material from the TRACE Services except for the reports explicitly designed for this purpose;

(d) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the TRACE Platform or TRACE Services without the prior written consent of Event Measurement Limited (EML).

3.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the TRACE Services by means of the Access Credentials.

3.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the TRACE Services.

3.7 The Customer must comply with Schedule 1 (Acceptable Use Policy) and must ensure that all Users comply with Schedule 1.

4. Maintenance

4.1 Event Measurement Limited (EML) may from time to time suspend the TRACE Services for the purposes of scheduled maintenance to the TRACE Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 4.

4.2 Event Measurement Limited (EML) shall, where practicable, give to the Customer at least 7 days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the TRACE Services or have a material negative impact upon the TRACE Services.

4.3 Event Measurement Limited (EML) shall ensure that all scheduled maintenance is carried out outside normal working hours in the UK.

4.4 The Customer must ensure that all Users follow any update or upgrade processes reasonably specified by Event Measurement Limited (EML) in relation to the update or upgrade of the TRACE Platform and TRACE Services.

5. Support Services

5.1 Event Measurement Limited (EML) shall provide the Support Services to the Customer during the Term with reasonable skill and care and in the English language.

6. Additional Services

6.1 Event Measurement Limited (EML) shall provide to the Customer any Additional Services that are:

(a) specified in the Services Order Form; or

(b) agreed by the parties in writing.

6.2 Event Measurement Limited (EML) shall use reasonable endeavours to ensure that the Additional Services are provided in accordance with any agreed timetable but does not guarantee this.

6.3 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Additional Services by Event Measurement Limited (EML) shall be the exclusive property of Event Measurement Limited (EML).

7. Customer obligations

7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to Event Measurement Limited (EML), or procure for Event Measurement Limited (EML), such:

(a) co-operation, support and advice; and

(b) information and documentation;

as are reasonably necessary to enable Event Measurement Limited (EML) to perform its obligations under the Agreement.

8. Data

8.1 The Customer agrees that Event Measurement Limited (EML) may collect and use Input Data, Report Data and Aggregated Data in accordance with this Clause 8:

(a) Event Measurement Limited (EML) may use Input Data to the extent reasonably required for the generation of the Report Data;

(b) Event Measurement Limited (EML) may also use Input Data and/or Report Data, on a non-exclusive basis, to the extent reasonably required for: (i) the provision of the Services generally; (ii) the performance of Event Measurement Limited (EML) other obligations under the Agreement; and (iii) the exercise of Event Measurement Limited (EML) rights under the Agreement;

(c) Event Measurement Limited (EML) may use Input Data and/or Report Data for the purpose of creating Aggregated Data (providing that Event Measurement Limited (EML) must ensure that the Aggregated Data does not include any Customer Personal Data and does not contain any information enabling the identification of: (i) the Customer; (ii) any supplier or customer of the Customer, or any other person with whom the Supplier has a business or other relationship; or (iii) any specific event, location or premises); and

(d) Event Measurement Limited (EML) will typically use the Aggregated Data for the purpose of providing information and/or services to the Customer and to third parties, but may distribute, adapt, publish and otherwise use the Aggregated Data as Event Measurement Limited (EML) sees fit without restriction.

Event Measurement Limited (EML) may sub-license these rights to its services providers insofar as reasonably required for these purposes; and these rights to use data shall apply from the Effective Date until the end of the relevant period(s) specified in Clause 22.3.

8.2 The Customer agrees that Event Measurement Limited (EML) may allow its hosting, connectivity, telecommunications and other service providers to store, copy and otherwise use the Input Data, Report Data and Aggregated Data for the purposes specified in Clause 8.1, subject to any express restrictions elsewhere in the Agreement.

8.3 The Customer warrants to Event Measurement Limited (EML) that the Input Data, and its use by Event Measurement Limited (EML) in accordance with the Agreement, will not infringe the Intellectual Property Rights or other legal rights of any person and will not breach the provisions of any applicable law, statute or regulation.

8.4 Event Measurement Limited (EML) shall have no responsibility to the Customer with respect to any inaccuracy or incompleteness of any Input Data.

8.5 Event Measurement Limited (EML) may delete Input Data from the TRACE Platform at any time following the end of the period of 6 months after the last use of the TRACE Services by a User with respect to the event to which that Input Data relates (which, the Customer acknowledges, may be during the subsistence of the Agreement).

8.6 The Customer acknowledges that Event Measurement Limited (EML) will be the owner of any Intellectual Property Rights in the Aggregated Data, excluding any Intellectual Property Rights of the Customer in the Input Data.

9. Customer delays

9.1 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Additional Services.

9.2 Subject to Clause 19.1 Event Measurement Limited (EML) will not be liable to the Customer in respect of any failure to meet the Additional Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under the Agreement.

10. Code

10.1 The Customer has no right to access the software code (including object code, intermediate code and source code) of the TRACE Platform, either during or after the Term.

11. No assignment of Intellectual Property Rights

11.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from Event Measurement Limited (EML) to the Customer, or from the Customer to Event Measurement Limited (EML).

12. Charges

12.1 The Customer shall pay the Charges to Event Measurement Limited (EML) in accordance with these Terms and Conditions.

12.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to Event Measurement Limited (EML).

12.3 At least 60 days before the end of each Agreement Period, Event Measurement Limited (EML) shall notify the Customer of any changes to the Charges relating to the next Agreement Period. If the Customer does not terminate the Agreement in accordance with Clause 21.1, the notified Charges shall apply with respect to that next Agreement Period.

13. Payments

13.1 Event Measurement Limited (EML) shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in the Services Order Form

13.2 The Customer must pay the Charges to Event Measurement Limited (EML) within the period of 30 days following the issue of an invoice in accordance with this Clause 13.

13.3 The Customer must pay the Charges by bank transfer using such payment details as are notified by Event Measurement Limited (EML) to the Customer from time to time.

13.4 If the Customer does not pay any amount properly due to Event Measurement Limited (EML) under these Terms and Conditions, Event Measurement Limited (EML) may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

13.5 Event Measurement Limited (EML) may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to Event Measurement Limited (EML) under the Agreement is overdue.

14. Confidentiality

14.1 Event Measurement Limited (EML) must:

(a) keep the Customer Confidential Information strictly confidential; and

(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer.

14.2 The Customer must:

(a) keep the Event Measurement Limited (EML) Confidential Information strictly confidential; and

(b) not disclose the Event Measurement Limited (EML) Confidential Information to any person without Event Measurement Limited (EML) prior written consent, and then only under conditions of confidentiality approved in writing by Event Measurement Limited (EML).

14.3 Notwithstanding Clause 14.1 and Clause 14.2, the Confidential Information of a party may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

14.4 This Clause 14 imposes no obligations with respect to Confidential Information that:

(a) is known to the recipient party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the recipient party; or

(c) is obtained by the recipient party from a third party in circumstances where the recipient party has no reason to believe that there has been a breach of an obligation of confidentiality.

14.5 The restrictions in this Clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Event Measurement Limited (EML) on any recognised stock exchange.

14.6 The provisions of this Clause 14 shall continue in force indefinitely following the termination of the Agreement.

15. Data protection

15.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

15.2 The Customer warrants to Event Measurement Limited (EML) that it has the legal right to disclose all Personal Data that it does in fact disclose to Event Measurement Limited (EML) under or in connection with the Agreement.

15.3 The Customer shall only supply to Event Measurement Limited (EML), and Event Measurement Limited (EML) shall only process, in each case under or in relation to the Agreement:

(a) the Personal Data of Users (or such other categories as may be agreed by the parties in writing); and

(b) Personal Data of the following types: names, email addresses, company/employer, job title and function information concerning use of the TRACE Services (or such other types as may be agreed by the parties in writing),

but excluding data held in Event Measurement Limited (EML) customer relationship management system, data used by Event Measurement Limited (EML) to communicate with the Customer, data relating to Customer transactions, and data contained in or relating to communications between Event Measurement Limited (EML) and the Customer.

15.4 Event Measurement Limited (EML) shall only process the Customer Personal Data for the purposes of providing the Services, performing Event Measurement Limited’s (EML) other obligations under the Agreement, and exercising Event Measurement Limited’s (EML) rights under the Agreement.

15.5 Event Measurement Limited (EML) shall only process the Customer Personal Data during the Term and after the Term in accordance with Clause 22.3, subject to the other provisions of this Clause 15.

15.6 Event Measurement Limited (EML) shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

15.7 Notwithstanding any other provision of the Agreement, Event Measurement Limited (EML) may process the Customer Personal Data if and to the extent that Event Measurement Limited (EML) is required to do so by applicable law. In such a case, Event Measurement Limited (EML) shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

15.8 Event Measurement Limited (EML) shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

15.9 Event Measurement Limited (EML) and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

15.10 Event Measurement Limited (EML) must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. The Customer hereby grants to Event Measurement Limited (EML) a general authorisation to appoint those third party processors specified in the Services Order Form. In the case of this or any other general written authorisation, Event Measurement Limited (EML) shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer shall have the right to terminate the Agreement by giving to Event Measurement Limited (EML) written notice of termination at any time before the end of that 14-day period (such notice to be immediately effective). Event Measurement Limited (EML) shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on Event Measurement Limited (EML) by this Clause 15.

15.11 Event Measurement Limited (EML) shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

15.12 Event Measurement Limited (EML) shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Event Measurement Limited (EML) may charge the Customer at its standard time-based charging rates for any work performed by Event Measurement Limited (EML) at the request of the Customer pursuant to this Clause 15.12.

15.13 Event Measurement Limited (EML) must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after Event Measurement Limited (EML) becomes aware of the breach.

15.14 Event Measurement Limited (EML) shall make available to the Customer all information necessary to demonstrate the compliance of Event Measurement Limited (EML) with its obligations under this Clause 15 and the Data Protection Laws. Event Measurement Limited (EML) may charge the Customer at its standard time-based charging rates for any work performed by Event Measurement Limited (EML) at the request of the Customer pursuant to this Clause 15.14, providing that no such charges shall be levied with respect to the completion by Event Measurement Limited (EML) (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.

15.15 Event Measurement Limited (EML) shall, at the choice of the Customer and in accordance with Clauses 8.5 and 22.3, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

15.16 Event Measurement Limited (EML) shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of Event Measurement Limited (EML)’s processing of Customer Personal Data with the Data Protection Laws and this Clause 15. Event Measurement Limited (EML) may charge the Customer at its standard time-based charging rates for any work performed by Event Measurement Limited (EML) at the request of the Customer pursuant to this Clause 15.16, providing that no such charges shall be levied where the request to perform the work arises out of any breach by Event Measurement Limited (EML) of the Agreement or any security breach affecting the systems of Event Measurement Limited (EML).

15.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

16. Warranties

16.1 The Customer warrants to Event Measurement Limited (EML) that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

16.2 Event Measurement Limited (EML) warrants to the Customer that:

(a) Event Measurement Limited (EML) has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b) Event Measurement Limited (EML) will comply with all applicable legal and regulatory requirements applying to the exercise of Event Measurement Limited (EML) rights and the fulfilment of Event Measurement Limited (EML) obligations under these Terms and Conditions; and

(c) the TRACE Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(d) the TRACE Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person under English law.

16.3 If Event Measurement Limited (EML) reasonably determines, or any third party alleges, that the use of the TRACE Services by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, Event Measurement Limited (EML) may at its own cost and expense:

(a) modify the TRACE Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b) procure for the Customer the right to use the TRACE Services in accordance with these Terms and Conditions.

16.4 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

17. Acknowledgements and warranty limitations

17.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, Event Measurement Limited (EML) gives no warranty or representation that the TRACE Services will be wholly free from defects, errors and bugs.

17.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Event Measurement Limited (EML) gives no warranty or representation that the TRACE Services will be entirely secure.

17.3 The Customer acknowledges that the TRACE Services are designed to be compatible only with that software and those systems specified as compatible in the Services Order Form; and Event Measurement Limited (EML) does not warrant or represent that the TRACE Services will be compatible with any other software or systems.

17.4 The Customer acknowledges that the TRACE Services are not a legal or regulatory compliance tool and that Event Measurement Limited (EML) will not provide any legal or regulatory advice or in relation to the TRACE Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, Event Measurement Limited (EML) does not warrant or represent that the TRACE Services or the use of the TRACE Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

18. Indemnities

18.1 Event Measurement Limited (EML) shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any third party claim that the application software of the TRACE Services infringes any person’s Intellectual Property Rights (an “Event Measurement Limited (EML) Indemnity Event“).

18.2 The Customer must:

(a) upon becoming aware of an actual or potential Event Measurement Limited (EML) Indemnity Event, notify Event Measurement Limited (EML);

(b) provide to Event Measurement Limited (EML) all such assistance as may be reasonably requested by Event Measurement Limited (EML) in relation to Event Measurement Limited (EML) Indemnity Event;

(c) allow Event Measurement Limited (EML) the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to Event Measurement Limited (EML) Indemnity Event; and

(d) not admit liability to any third party in connection with Event Measurement Limited (EML) Indemnity Event or settle any disputes or proceedings involving a third party and relating to Event Measurement Limited (EML) Indemnity Event without the prior written consent of Event Measurement Limited (EML),

and Event Measurement Limited (EML)’s obligation to indemnify the Customer under Clause 18.1 shall not apply unless the Customer complies with the requirements of this Clause 18.2.

18.3 The Customer shall indemnify and shall keep indemnified Event Measurement Limited (EML) against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Event Measurement Limited (EML) and arising directly or indirectly as a result of:

(a) any third party claims resulting from of any use of or reliance upon Report Data provided by the Customer directly or indirectly to the relevant third party; or

(b) any third party claim that the Input Data infringes any person’s Intellectual Property Rights,

(a “Customer Indemnity Event“).

18.4 Event Measurement Limited (EML) must:

(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

and the Customer’s obligation to indemnify Event Measurement Limited (EML) under Clause 18.3 shall not apply unless Event Measurement Limited (EML) complies with the requirements of this Clause 18.4.

18.5 The indemnity protection set out in this Clause 18 shall not be subject to the limitations and exclusions of liability set out in the Agreement, except that Clause 19.10 shall apply.

19. Limitations and exclusions of liability

19.1 Nothing in these Terms and Conditions will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law.

19.2 The limitations and exclusions of liability set out in this Clause 19 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 19.1;

(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions; and

19.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

19.4 Event Measurement Limited (EML) shall not be liable to the Customer in respect of:

(a) any loss of profits or anticipated savings;

(b) any loss of revenue or income;

(d) any loss of business, contracts or opportunities.

19.5 Event Measurement Limited (EML) shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 19.8 shall not apply to any liability of Event Measurement Limited (EML) under Clause 15.

19.6 Event Measurement Limited (EML) shall not be liable to the Customer in respect of any loss or damage arising out of any defect, error or bug in the TRACE Platform or TRACE Services caused by or arising as a result of:

(a) any act or omission of the Customer or any person authorised by the Customer to use the TRACE Platform or TRACE Services;

(b) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(c) an incompatibility between the TRACE Platform or TRACE Services and any other system, network, application, program, hardware or software not specified as compatible in the Services Order Form.

19.7 Event Measurement Limited (EML) shall have no liability to the Customer in relation to any loss or damage that may arise out of the reliance by the Customer upon Input Data or any data derived by the TRACE Services from inaccurate, misleading, incomplete or otherwise defective Input Data.

19.8 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

19.9 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of GBP 5,000 and the total amount paid and payable by the Customer to Event Measurement Limited (EML) under the Agreement.

19.10 The aggregate liability of each party to the other party under the Agreement shall not exceed GBP 25,000.

20. Force Majeure Event

20.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

20.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

20.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

21. Termination

21.1 Either party may terminate the Agreement at the end of the Agreement Period by giving written notice to the other party no less than 30 days’ prior to the renewal date.

21.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any material breach of the Agreement, and the breach is not remediable; or

(b) the other party commits a material breach of the Agreement, and the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.

21.3 Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or

21.4 Event Measurement Limited (EML) may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to Event Measurement Limited (EML) under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and

(b) Event Measurement Limited (EML) has given to the Customer at least 14 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 21.4.

21.5 The Agreement may only be terminated in accordance with its express provisions.

22. Effects of termination

22.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 8, 9, 10, 13, 14, 15, 18, 19, 22, 23, 24.

22.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.

22.3 Upon and following the termination of the Agreement, Input Data, Report Data and Aggregated Data shall be treated as follows:

(a) Input Data that has not been previously deleted in accordance with the Agreement shall be promptly deleted following the date of effective termination;

(b) Event Measurement Limited (EML) shall store Report Data for a period of at least 18 months following the date of effective termination of the Agreement and shall provide to the Customer a copy of such Report Data, at no charge to the Customer and in a format reasonably determined by Event Measurement Limited (EML), promptly following receipt of a request for the same from the Customer during that period; following the end of this 18-month period, Event Measurement Limited (EML) may delete the Report Data; and

(c) Aggregated Data shall be retained by Event Measurement Limited (EML) indefinitely and may be used in accordance with the other provision of the Agreement,

in each case subject to the requirements of applicable law and without prejudice to the provisions of the Agreement relating to Customer Personal Data.

23. General

23.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

23.2 The Agreement may not be varied except:

(a) by means of a written document signed by or on behalf of each party;

(b) if a variation is reasonably necessary to ensure that Event Measurement Limited (EML) or the Customer complies with applicable law, by Event Measurement Limited (EML) giving to the Customer at least 30 days’ prior written notice of the variation; or

(c) from the start of an Agreement Period, by Event Measurement Limited (EML) giving to the Customer at least 60 days’ prior written notice of the variation.

23.3 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

23.4 These Terms and Conditions shall be governed by and construed in accordance with English law.

23.5 Any disputes relating to the Agreement shall be subject to the non-exclusive jurisdiction of the courts of England.

24. Interpretation

24.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

24.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

24.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

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