Thank you for your interest in these Terms of Service
(these “Terms”) and welcome to Zilla Tech and our website at
www.zillatech.co.uk (our “website”). These Terms (together with the documents
referred to on it) tell you the terms and conditions on which we provide our
services to you.
Unless the context
otherwise requires, in this Agreement, the following words and expressions will
have the following meanings:
1.1.
“Accepted Proposal” means the
Proposal, signed and/or confirmed (whether orally or in writing) as accepted by
Customer, for the Services to be provided by Zilla Tech
1.2.
“Affiliates” means, in respect of
a person, its Parent Undertakings, its Subsidiary Undertakings and the
Subsidiary Undertakings of any of its Parent Undertakings from time to time,
with “Parent Undertaking” and
1.3.
“Subsidiary Undertaking” having
the meanings set out in section 1162 Companies Act 2006
1.4.
“Agreement” means the contract
between Zilla Tech and Customer for the supply of Services, consisting of and
incorporating the Proposal, these Terms and the Special Terms (if any)
1.5.
“Ancillary Costs” means any other
costs linked to providing the Services that are in addition to the Charges,
including reasonable travel expenses
1.6.
“Confidential Information” means
all confidential information (however recorded or preserved) disclosed by or on
behalf of a party and/or its Affiliates and/or subcontractors to the other
party and/or their Affiliates whether before, on, or after the date of this
Agreement and in connection with this Agreement, including: (a) the terms of
this Agreement; (b) confidential information relating to: (i) the other party’s
and/or their Affiliates’ and sub-contractors’ business, affairs, customers,
Customers, suppliers and/or business plans; (ii) the Intellectual Property
Rights, operations, processes, product information, Know-how, designs, trade
secrets and/or software of the other party and/or its’ Affiliates; and/or (c)
in addition to (a) and (b) any information which should, by its nature, be
reasonably assumed to be confidential.
1.7.
“Charges” means the payment(s) due
to Zilla Tech in respect of the supply of the Services as specified in the
Proposal.
1.8.
“Content” means the content,
documents, images, photographs, videos and/or other materials (if any) supplied
by Customer to Zilla Tech in a physical or electronic format for the purposes
of Zilla Tech providing the Services, if any.
1.9.
“Customer Default” means: (a) a
failure to provide one or more Customer Dependencies; and/or (b) omissions in
or problems with some or more of the Content
1.10.
“Customer Dependencies” means the
requirement for Customer to provide (in a timely manner): (a) the Content; (b)
access to Customer Systems; (c) any and all information reasonably reasonably
required by Zilla Tech which is necessary for Zilla Tech to supply the
Services; and/or (d) agreed customer obligations or dependencies or to enable
Zilla Tech to comply with its obligations under this Agreement
1.11.
“Customer Systems” means the
Customer’s technology infrastructure and technology systems
1.12.
“Event of Insolvency” means in
relation to a party means that party: (a) suspends or threatens to suspend
payment of its debts or is unable to pay its debts as they fall due; (b)
commences negotiations with any or all of its creditors with a view to rescheduling
any of its debts other than for the sole purpose of a solvent amalgamation; (c)
is subject to a petition being filed, a notice being given, a resolution being
passed, or an order being made for or in connection with the winding up of that
party other than for the sole purpose of a solvent amalgamation; (d) suspends
or ceases carrying on all or a substantial part of its business; or (e) is the
subject of any other event, action, application or order which is analogous to
any of the above in a relevant jurisdiction
1.13.
“Force Majeure Event” Means: (a)
act of God; (b) war, insurrection, riot, civil commotion, act or threat of
cyber terrorism or terrorism; (c) lightning, earthquake, fire, flood, storm, or
extreme weather condition; (d) theft, malicious damage; (e) strike, lockout,
industrial dispute (whether affecting the workforce of a party and/or any other
person); (f) breakdown or failure of plant or machinery; (g) inability to
obtain essential supplies or materials; (h) any failure or default of a
supplier or sub-contractor of the relevant party; or (i) any event or
circumstance to the extent it is beyond the reasonable control of the relevant
party
1.14.
“Foreground IP” means any
Intellectual Property Rights generated, developed, derived, conceived and/or
first reduced to practice in the course of activities performed by or on behalf
of either party on or after the Effective Date of this Agreement
1.15.
“Zilla Tech” means Rapid Digital
Marketing Limited trading as Zilla Tech of Bartle House, 9 Oxford Court,
Manchester, England, M2 3WQ;
1.16.
“Zilla Tech Background IP” means:
(a) any and all Intellectual Property Rights of Zilla Tech and/or its
Affiliates created before the Effective Date including in the Technology before
the Effective Date; and (b) any Intellectual Property Rights owned, developed
and/or licensed by Zilla Tech and/or any Zilla Tech Affiliate from third
parties prior to the Effective Date
1.17.
“Zilla Tech Foreground IP” means:
(a) any and all Foreground IP of Zilla Tech and/or its Affiliates created on or
after the Effective Date including in the Technology on or after the Effective
Date; and (b) any Intellectual Property Rights owned, developed and/or licensed
by Zilla Tech and/or any Zilla Tech Affiliate from third parties on or after
the Effective Date
1.18.
“Zilla Tech IP” means the Zilla
Tech Background IP and the Zilla Tech Foreground IP
1.19.
“Intellectual Property Rights”
means all intellectual and/or industrial property of any kind including but not
limited to patents, supplementary protection certificates, rights in Know-How,
registered trade marks, registered designs, unregistered design rights,
unregistered trade marks, rights to prevent passing off or unfair competition
and copyright (whether in drawings, plans, specifications, designs, software or
otherwise), database rights, topography rights, any rights in any invention,
discovery and/or process, and applications for and rights to apply for any of
the foregoing, in each case in the United Kingdom and all other countries in
the world and together with all renewals, extensions, continuations, divisions,
reissues, re-examinations and substitutions
1.20.
“Know-How” means unpatented,
technical and other information which is not in the public domain including
information comprising or relating to concepts, inventions, ideas, discoveries,
data, formulae, research models, specifications, content, methods, research
plans, and tests and results of experimentation and testing
1.21.
“Liability” means liability
arising out of or in connection with this Agreement, whether in contract, tort,
misrepresentation, restitution, under statute or otherwise, including any
liability under an indemnity contained in this Agreement and/or arising from a
breach of, or a failure to perform or defect or delay in performance of, any of
a party’s obligations under this Agreement, in each case howsoever caused
including if caused by negligence
1.22.
“Losses” means all direct losses;
Liability; costs; damages and/or expenses that a party and/or their Affiliates
does or will incur or suffer; all claims or proceedings, investigations and/or
regulatory action made, brought or threatened against such party (and/or their
Affiliates) by any person and/or regulatory body; and all direct losses,
Liability, costs, damages and/or expenses that that party (and/or their
Affiliates) does or will incur or suffer as a result of defending or settling
any such actual or threatened claim or proceeding
1.23.
“Personal Data” shall have the
same meaning as given to in the UK`s Data Protection Act (“DPA”) and the EU’s
General Data Protection Regulation (“GDPR”)
1.24.
“Proposal” means the proposal
drafted by Zilla Tech and sent to Customer
1.25.
“Quarter” means the period of
three (3) calendar months counting starting on the
1.26.
Effective Date, each successive
period of three (3) calendar months during the Term and the period (if any)
starting on the day following expiry of the last such period of three (3)
calendar months and ending on the Termination Date; and “Quarterly” will be
construed accordingly
1.27.
“Recipient” means the party and/or
its Affiliates to whom Confidential Information is disclosed
1.28.
“Rights” means rights, title and
interest the Intellectual Property Rights
1.29.
“Services” means the services
and/or deliverables provided or to be provided to Customer as detailed in the
Accepted Proposal or as discussed by the parties by email and/or telephone
1.30.
“Technology” means the software,
equipment and/or other technology of or used by Zilla Tech in the performance
of the Services
1.31.
“Termination Date” the date on
which this Agreement expires or terminates for whatever reason
1.32.
“Terms and Conditions” these
General Terms, together with any applicable Special Terms
In this Agreement: (a)
capitalised terms will have meanings set out in Clause 1 above; (b) references
to clauses and Schedules are to the clauses of and schedules to this Agreement;
(c) the Parts and Schedules form part of this Agreement and will have the same
force and effect as if set out in the body of this Agreement and any reference
to this Agreement will include the Parts and the Schedules; (d) all headings
are for ease of reference only; (e) unless the context otherwise requires: (i)
references to the singular include the plural and vice versa; (ii) references
to a company includes any company, corporation or other body corporate,
wherever and however incorporated or established; (iii) references to a
“person” include any individual, body corporate, association, partnership,
trust, governmental authority, agency or department or any other entity (in
each case whether or not having separate legal personality); (iv) a reference
to any party includes that party’s personal representatives, successors and permitted
assigns; (f) a reference to writing or written includes e-mail but does not
include fax; (g) any obligation on a party not to do something includes an
obligation not to allow that thing to be done; (h) any words following the
words “include”, “includes”, “including”, “in particular” or any similar words
or expressions will be construed without limitation and accordingly will not
limit the meaning of the words preceding them; and (i) to the extent only of
any conflict or inconsistency between these Terms, the Accepted Proposal, the
Special Terms and any other documents expressly incorporated in this Agreement
the order of priority will be (unless a specific different order of precedence
is noted in the Proposal): (1) the Accepted Proposal; (2) these Terms; (3) the
Special Terms; and (4) any other documents expressly incorporated into this
Agreement.
3.1.
This Agreement will come into
effect and be contractually binding on both parties in accordance with these
General Terms and, unless terminated in accordance with its terms, will remain
in force until all the Services set out in the Accepted Proposal have been
provided by Zilla Tech and paid for in full by Customer.
3.2.
This Agreement sets out the terms
and conditions upon which Zilla Tech will supply and Customer will purchase the
Services.
4.1.
Any Proposal sent to Customer
constitutes an offer to provide the Services to Customer in accordance with
this Agreement which shall be valid for 30 days from the date of the Proposal
unless such date is extended by Zilla Tech in writing.
4.2.
A contract for the supply of the
Services by Zilla Tech to Customer (being the Agreement) will be formed when
Customer: (a) confirms and accepts the Proposal provided under clause 4.1 by
email, telephone or signature of a hard copy and, by doing so, acknowledges and
accepts these Terms and (if any) the Special Terms as well as the Proposal and
therefore accepts the Agreement in full; or (b) where these Terms and
Conditions are provided online, accepts these Terms and Conditions by clicking
“I accept” button at the bottom of the Terms and Conditions and, by doing so,
acknowledges and accepts the Proposal, these General Terms and (if any) the
Special Terms and therefore accepts the Agreement in full. The date of
formation referred to above will be the “Effective Date” of this Agreement.
4.3.
The Customer warrants and will
ensure that the representative(s) who read and accept the Proposal, these
General Terms and any applicable terms, have the authority to enter into the
Agreement and bind the Customer.
5.1.
Zilla Tech will perform the
Services with reasonable care and skill and in material accordance with the
Accepted Proposal.
5.2.
The assessment and selection of
the Services (and their appropriateness and suitability for Customer) remains
Customer’s sole responsibility.
5.3.
The Customer will promptly ensure
that the Customer Dependencies have been performed to enable Zilla Tech to
provide the Services.
5.4.
Customer will promptly perform the Customer
Dependencies. If Zilla Tech’s performance of any of its obligations under the
Agreement is prevented or delayed by a Customer Default then, without prejudice
to Zilla Tech’s other rights and remedies: (a) Customer will promptly remedy
the Customer Default; (b) Zilla Tech may suspend performance of the Services
and Zilla Tech’s obligations until Customer remedies Customer Default; and (c)
Customer will reimburse Zilla Tech for any costs or losses sustained or incurred
by Zilla Tech arising directly or indirectly from Customer Default.
5.5.
Without prejudice to Zilla Tech’s
rights under clause 5.6, if Customer fails to or delays in providing any of the
Customer Dependencies then the Customer will promptly remedy the failure or
delay by providing the Customer Dependencies and the date for performance by
Zilla Tech of any obligations which relate to and/or are dependent on such
performance by Customer will be extended by the period which Zilla Tech
reasonably requires and is reasonably commensurate in order for Zilla Tech to
manage the impact of Customer’s failure or delay.
5.6.
If the Customer does not perform
the Customer Dependences within a reasonable period from the Effective Date
(which in any event will be no later than 45 days), then Zilla Tech reserves
the right to invoice the Customer for the full amount of the Accepted Proposal
and will be entitled to terminate the Agreement.
5.7.
Zilla Tech may, in its sole
discretion, make improvements, substitutions and/or modifications to the
specification of any element or part of the Services at any time provided that
such improvement, substitution or modification will not have a material detrimental
impact on the Services.
5.8.
Any delivery date(s) set out in
the Accepted Proposal or agreed to by Zilla Tech are estimates only and time
shall not be of the essence in relation to such date(s).
6.1.
Customer will, within the time
period specified in the Accepted Proposal (or, if no time is specified, within
a reasonable period (to be agreed by the parties) after the Effective Date),
provide Zilla Tech with all Content necessary for Zilla Tech to provide the
Services (if any are stated or required).
6.2.
Unless otherwise specified in the
Accepted Proposal or below, title to the Content will remain vested in
Customer. Subject to clause 7 of these General Terms, Zilla Tech may retain, if
reasonably required, and/or destroy the Content supplied to it after completion
of the Services at no cost to Zilla Tech. Any retention of Content by Zilla
Tech will be to allow Zilla Tech to fulfil further obligations with Customer if
any in relation to support and/or maintenance; or for its own record-keeping or
evidentiary purposes. Customer warrants to Zilla Tech and will ensure that the
Content will not: (a) contravene any Applicable Laws or standards including
those applicable in England and Wales and/or in any other jurisdiction(s) in
which Customer is located; (b) be considered to be defamatory, obscene,
offensive, indecent, malicious, hateful or inflammatory; (c) be pornographic or
sexually explicit; (d) be used or capable of use to promote violence, war or
terrorism; and/or (e) be used or capable of use to create a risk to a person’s
health or safety or public health or safety; or (f) promote, constitute or be
used as part of any illegal or unlawful activity.
6.3.
Subject to clause 6.2 of these
General Terms, unless otherwise specified in the Accepted Proposal, Zilla Tech
will only use and/or amend the Content for the purpose of supplying the
Services to Customer under this Agreement.
7.1.
Zilla Tech shall own and/or be the
licensee of all Rights in the Zilla Tech IP. Nothing in this Agreement will
operate to transfer ownership of any Zilla Tech IP to Customer. Zilla Tech
warrants and will ensure it is the owner and/or licensee of the Zilla Tech IP.
7.2.
In consideration of payment of the
Charges, Zilla Tech grants to Customer a non-exclusive licence to gain the
benefit of the Zilla Tech IP for the term set out and for the sole purpose set
out in the Accepted Proposal or, where none is set out, for the term of this
Agreement and for the sole purpose of receiving the benefit of the Services.
7.3.
Customer grants Zilla Tech a
royalty-free license for the term of this Agreement for Zilla Tech, the Zilla
Tech Affiliates and, in each case, their sub-contractors acting on their behalf
to use, amend, modify, access, support, configure, test, and/or update any and
all Customer Intellectual Property Rights (including in the Content) provided
to Zilla Tech or where access is granted to Zilla Tech.
Customer will: (a) ensure
that the Customer Systems are available when needed and in a timely manner as
are reasonably necessary for Zilla Tech to perform the Services; (b) any and
all information it provides is accurate, adequate and complete; (c) promptly
provide Zilla Tech, on request, with all cooperation, information, assistance,
materials and resources that Zilla Tech may reasonably require from time to
time in connection with the supply of the Services and the performance of the
Zilla Tech’s obligations under this Agreement; (d) obtain and maintain in force
all licences, permissions, authorisations, consents and permits needed by
Customer in order for Customer to receive the Services and/or to enable Zilla
Tech to perform the Services and the Zilla Tech’s other obligations under this
Agreement; (e) ensure and warrants to Zilla Tech that it is the owner of the
Content and/or a properly authorised licensee of the Content and that the
Content and any other Intellectual Property Rights it provides to Zilla Tech to
access and/or use or provide Services in relation to does not and will not
infringe the Rights of any third party including as a result of Zilla Tech
performing the Services.
9.1.
The Charges, which are set out in
the Accepted Proposal or otherwise agreed between the parties in writing, are
payable in accordance with this clause 9.
9.2.
Any sums payable under this
Agreement is exclusive of VAT and/or any other similar or equivalent or
applicable sales or other taxes, duties, fees, and levies imposed from time to
time by any government or other authority, which will be payable by Customer in
addition to that sum in the manner and at the rate prescribed by law from time
to time.
9.3.
Zilla Tech will be entitled to
invoice Customer on the basis set out in the Accepted Proposal or, where none
is set out, in advance of performing the Services.
9.4.
Each invoice will be payable by
Customer within 14 days following the date on which the invoice is issued and
time shall be of the essence for payment.
9.5.
All payments will be made in the
currency set out in the Accepted Proposal or, where none is set out pounds
sterling, Euros or US dollars, as required by Zilla Tech. Unless otherwise
agreed in writing between the parties, payments will be in cleared funds by
Customer by direct/digital bank transfer, wire transfer or other agreed form of
electronic transfer.
9.6.
Notwithstanding any purported
contrary appropriation by Customer, Zilla Tech will be entitled, by giving
written notice to Customer, to appropriate any payment by Customer to any
invoice issued by Zilla Tech.
9.7.
If any sum payable under this
Agreement is not paid on or before the due date for payment Customer will pay
to Zilla Tech interest on that sum at 5% per annum above the base lending rate
from time to time of Barclays Bank plc from the due date until the date of
payment (whether before or after judgment), such interest to accrue on a daily
basis and be compounded Quarterly. Customer will pay the interest together with
the overdue sum.
9.8.
If Customer fails to make any payment due to
Zilla Tech under this Agreement on or before the due date, Zilla Tech will be
entitled to withhold further Services until payment of all overdue sums has
been made and/or to terminate this Agreement in accordance with clause 11.
9.9.
Save as otherwise expressly
provided in this Agreement, or required by law, all payments will be made by
Customer to Zilla Tech in full on the due dates for payment without any
deduction, set-off or counterclaim for damages or for any other reason.
10.1.
Zilla Tech does not exclude or
limit its Liability (if any) for: (a) fraud or fraudulent misrepresentation to
the extent it may not be excluded in law; (b) death or personal injury
resulting from Zilla Tech’s negligence or the negligence of its employees,
subcontractors or agents; or (c) any matter which cannot be excluded by or
limited in law.
10.2.
Except as set out in clause 10.1
of these General Terms, Zilla Tech’s aggregate Liability to Customer in respect
of any loss or damage that is not excluded in clause 9.3 will be limited to:
(a) the Charges paid by Customer in the 12 months prior to the breach; or (b)
where there has not been a 12 month period prior to the breach, the sum of 1
months’ Charges (either due, if none has been paid or on a mean average basis
if one or more months’ have been paid) multiplied by 12.
10.3.
Except as set out in clause 10.1
of these General Terms, Zilla Tech will not be liable to Customer, whether in
contract, tort (including but not limited to negligence) or otherwise for any
of the following types of losses: (a) loss of profits; (b) loss of revenue; (c)
loss of or depletion to goodwill; (d) loss of use of and/or damage to data or
software; (e) infection of or damage or interference caused to any computer
operating systems or programmes (or part thereof); and/or (f) any special,
indirect or consequential loss, regardless of whether or not any such losses
were foreseeable and/or Zilla Tech had been advised of the possibility of
Customer incurring such losses.
10.4.
Except as expressly provided in
this Agreement, there are no other terms, conditions, and/or warranties binding
on the parties with respect to the actions contemplated by this Agreement. Any
condition, warranty or other term in this regard which might otherwise be
implied or incorporated into this Agreement, whether by statute, common law or
otherwise, is, insofar as it is lawful to do so, hereby excluded (including any
representation, condition or warranty as to the sufficiency, accuracy or
fitness for purpose.
11.1.
If a party: (a) commits a material
breach of this Agreement which cannot be remedied; or (b) commits a material
breach of this Agreement which can be remedied but fails to remedy that breach
within 45 days of a written notice setting out the breach and requiring it to
be remedied being given by the other party, then the other party may terminate
this Agreement immediately by giving written notice to that effect to the party
in breach.
11.2.
Either party may terminate this
Agreement immediately by giving written notice to that effect to the other
party if the other party undergoes an Event of Insolvency.
12.1.
Following the Termination Date:
(a) the following provisions will continue in force: 6, 7(e), 8, 9, 11, and 13
to 19 (inclusive) together with any other provisions which expressly or
impliedly continue to have effect after expiry or termination of this Agreement;
and (b) all other rights and obligations will immediately cease without
prejudice to any rights, obligations, claims (including claims for damages for
breach) and liabilities which have accrued prior to the Termination Date.
12.2.
Following the Termination Date,
Zilla Tech will be entitled to invoice all costs incurred which have not yet
been invoiced; and (b) Customer will promptly pay such invoices in accordance
with clause 9.
12.3.
Upon termination or expiry of this
Agreement, if the Accepted Proposal has not been fully performed as at the
Termination Date will be deemed to be cancelled without Zilla Tech incurring
any Liability to Customer. Customer will reimburse to Zilla Tech all costs and
expenses incurred by Zilla Tech in furtherance of its obligations under such
Accepted Proposals prior to the date of deemed termination.
13.1.
A party will not be in breach of
this Agreement or otherwise liable to the other party for any failure to
perform or delay in performing its obligations under this Agreement to the
extent that such failure or delay is due to a Force Majeure Event.
13.2.
The party affected by a Force
Majeure Event will as soon as reasonably practicable give written notice to the
other party that the Force Majeure Event has occurred giving details of the
nature, extent and anticipated duration of the Force Majeure Event and the
expected impact of the Force Majeure Event on its ability to perform its
obligations and the party affected will use reasonable endeavours, without
being required to incur additional expenditure, to mitigate the effects of the
Force Majeure Event.
14.1.
Each party undertakes to the other
party to keep the other party’s and in the case of the Customer, to
additionally keep Zilla Tech Affiliates’ Confidential Information confidential
and not to disclose it to any third party, or to use it other than for the
purposes of performing the Services or as permitted under or in accordance with
this Agreement (including for the purpose of enjoying the benefit of the rights
and licences granted, or fulfilling the obligations imposed under this
Agreement).
14.2.
Each party may disclose the other
party’s Confidential Information to its and in the case of Zilla Tech, to Zilla
Tech’s employees, sub-contractors, officers, representatives, and/or advisers
who need to know such Confidential Information for the purposes of carrying out
that party’s obligations under this Agreement or advising that party in
connection with the Agreement and, in the case of Zilla Tech, to Zilla Tech’s
investors, potential investors and/or bankers.
14.3.
Each party shall ensure that its
employees, officers, representatives, advisors and, in the case of Zilla Tech,
sub-contractors to whom it discloses the other party’s Confidential Information
comply with and are bound by written confidentiality obligations that are
materially as protective as this clause 14.
14.4.
The obligations contained in this
clause 14 shall survive the expiry or termination of this Agreement for any
reason, but shall not apply to any Confidential Information which: (a) is
publicly known at the time of disclosure to the receiving party; (b) becomes
publicly known otherwise than through a breach of this Agreement by the
receiving party, its officers, employees, agents and/or sub-contractors; and/or
(c) can be proved by the receiving party to have reached it otherwise than by
being communicated by the other party and free of obligations of
confidentiality.
14.5.
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 14.5, it takes into
account the reasonable requests of the other party in relation to the content
of such disclosure.
15.1.
Zilla Tech will collect and
process information relating to the Service in accordance with its Privacy
Policy and under consideration of the UK`s Data Protection Act (“DPA”) and the
EU’s General Data Protection Regulation (“GDPR”).
15.2.
Zilla Tech will entrust only such
employees and any subcontractors with the data processing who have been bound
to confidentiality and have previously been familiarised with the data
protection provisions relevant to their work.
15.3.
Zilla Tech and any person acting
under Zilla Tech’s authority who has access to personal data may only process
that data in accordance with Zilla Tech’s instructions unless otherwise
required to do so by law and to provide Zilla Tech’s Services.
15.4.
Zilla Tech agrees to the
implementation and observance of all technical and organisational measures
necessary for this Agreement in accordance with the DPA and GDPR.
15.5.
Zilla Tech will regularly monitor
our internal processes as well as the technical and organisational measures to
ensure that the processing is executed in accordance with the requirements of
the DPA and GDPR and that the rights of the Customer are protected.
15.6.
The Customer shall own all rights,
title, and interest in and to all of the Customer Data and shall have sole
responsibility for the legality, reliability, integrity, accuracy, and quality
of the Customer Data.
15.7.
If Zilla Tech processes any
personal data on the Customer’s behalf when performing its obligations under
this Agreement, the parties record their intention that the Customer shall be
the data controller and Zilla Tech shall be a data processor and in any such
case:
15.7.1.1.
the Customer acknowledges and
agrees that the personal data may be transferred or stored outside the UK or
EEA or the country where the Customer is located in order to carry out the
Services and Zilla Tech’s other obligations under this Agreement.
15.7.1.2.
the Customer shall ensure that the
Customer is entitled to transfer the relevant personal data to Zilla Tech so
that Zilla Tech may lawfully use, process and transfer the personal data in
accordance with this agreement on the Customer’s behalf;
15.7.1.3.
the Customer shall ensure that the
relevant Data Subjects have been informed of, and have given their consent to,
such use, processing, and transfer as required by the DPA and GDPR;
15.7.1.4.
Zilla Tech shall process the
personal data only in accordance with the terms of the relevant Data Processing
Agreement and any lawful instructions reasonably given by the Customer from
time to time; and
15.7.1.5.
each party shall take appropriate
technical and organisational measures against unauthorised or unlawful
processing of the personal data or its accidental loss, destruction, or damage.
16.1.
Neither Party shall be deemed to
be in breach of the Terms and Conditions if that Party is unable to carry out
any provision of the Terms and Conditions (other than payment provisions) for
any reason beyond its reasonable control.
16.2.
The Customer shall not be entitled
to assign, subcontract, sublicense or otherwise transfer any or all of its
rights and/or obligations under the Terms and Conditions without the prior
written consent of Zilla Tech.
16.3.
All notices under this Agreement
shall be in writing and be deemed duly given if signed by, or on behalf of, a
duly authorised officer of the Party giving the notice. In each case notices
shall be addressed to the most recent address, or e-mail address notified to
the other Party. All notices shall be deemed effective upon the earlier of: i)
receipt by the Party to which notice is given; and ii) the third day following
mailing.
16.4.
Except as otherwise expressly
provided in the Terms and Conditions none of the terms and conditions of the
Terms and Conditions shall be enforceable by any person who is not a Party to
it.
16.5.
A waiver of any right under the
Terms and Conditions is only effective if it is in writing and shall not be
deemed to be a waiver of any subsequent breach or default. No failure or delay
by a Party in exercising any right or remedy under the Terms and Conditions or
by law shall constitute a waiver of that or any other right or remedy, nor
preclude or restrict its further exercise. No single or partial exercise of
such right or remedy shall preclude or restrict the further exercise of that or
any other right or remedy.
16.6.
Nothing in the Terms and
Conditions shall be construed as establishing or implying any partnership or
joint venture between the Parties and nothing in the Terms and Conditions shall
be deemed to constitute one of the Parties as the agent of the other.
16.7.
Those provisions of the Terms and
Conditions which by their nature or implication are required to survive expiry
or termination of the Terms and Conditions shall so survive and continue in
full force and effect, together with any other provisions of the Terms and
Conditions necessary to give effect to such provisions.
16.8.
No variation of these Terms shall
be valid unless it is in writing and signed on behalf of each Party by an
authorised signatory.
16.9.
Each provision of the Terms and
Conditions shall be construed separately and, save as otherwise expressly
provided herein, none of the provisions hereof shall limit or govern the
extent, application or construction of any other of them and, notwithstanding
that any provision of the Terms and Conditions may prove to be unenforceable by
law, the remaining provisions shall continue in full force and effect.
16.10.
These Terms, their subject matter
their formation, and any other disputes or claims in connection therewith, are
governed by the laws of England and Wales.
16.11.
The Parties shall attempt to
resolve any dispute arising out of or relating to these Terms through
negotiations. If negotiations do not resolve the matter within 30 days of
receipt of a written invitation to negotiate, the parties will attempt to
resolve the dispute in good faith through an agreed-upon Online Alternative
Dispute Resolution (“ADR”) procedure. If the ADR procedure does not resolve the
matter within 30 days of the initiation of that procedure, or if either Party
will not participate in the ADR procedure, the dispute may be referred to
arbitration by either Party.
16.12.
These Terms shall be governed by
and construed in accordance with the laws of England and Wales, without regard
to its choice of law provisions.