Introduction
The terms set out in this MSLA apply to your use of the Subscribed Services. We reserve the right to vary the terms of this MSLA from time to time. The updated terms will be notified to you via an in-platform notification in your portal or by email. The updated terms will also be displayed on our website https://www.nazca-services.com/legal-stuff/ and by continuing to use the Subscribed Services you agree to be bound by any variation made by us.
Each Order Form entered into by you shall form a separate agreement incorporating the terms of this MSLA together with any documents referred to in it (our “Agreement”).
The definitions set out in Schedule 1 shall apply to our Agreement.
Any obligation on us to comply with any law shall be limited to compliance only with laws within the Subscribed Territory.
You understand that purchases made by you are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by us regarding future functionality or features.
1. Scope
1.1 On Order Acceptance and subject to the terms and conditions of our Agreement, we grant to you a non-exclusive, non-transferable, non-assignable, worldwide, limited license to:
(a) use each Subscribed Service and copy; and
(b) use the Documentation
as strictly necessary for your (or your User’s) use of the Subscribed Services within the Subscribed Territory during the Subscribed Service Period and for the Permitted Purpose.
1.2 Any rights not expressly granted to you are reserved by us and our licensors.
1.3 We can make changes, modifications and enhancements to the Subscribed Services at any time.
2. Limitations on Your Use
2.1 You may not share with any third party the results of any evaluation of the Subscribed Services for purposes of monitoring the Subscribed Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes without our prior written approval.
2.2 You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Subscribed Services or the Documentation in any way; (b) modify or make derivative works based upon the Subscribed Services or the Documentation; (c) reverse engineer the Subscribed Services; or (d) access the Subscribed Services in order to build a competitive product or service. Subject to clause 1, nothing in this clause 2 shall be deemed to stop you from allowing your Users accessing the functionality of the Subscribed Services, via interfaces, portal applications and the like, for internal business purposes.
2.3 You shall not use the Subscribed Services to:
(a) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Laws;
(b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights;
(c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(d) interfere with or disrupt the integrity or performance of the Subscribed Services or the data contained therein; or
(e) attempt to gain unauthorized access to the Subscribed Services or its related systems or networks.
2.4 We strive to keep the Services you depend on up and running; in order to achieve this aim, we will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. While we've taken steps to help protect your data, no method of electronic storage is completely secure, and we cannot guarantee absolute security. Read more about these measures on our Security Page. We will notify you if there appears to be unauthorised access to your account and we may also restrict access to certain parts of our services until you verify that access was by an authorised user. In order to avoid loss of data, We maintain multiple geographically separated data replicas and hosting environments to minimise the risk of data loss or outages.
3. Your Responsibilities
3.1 You are responsible for all activity occurring under your account and you shall comply with all Applicable Laws and the terms of our Agreement in connection with your use of the Subscribed Services.
3.2 You shall: (a) notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Subscribed Services; and (b) report to us immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of any Nazca Services Materials that become known or suspected by you or your Users.
4. Customer Data
4.1 We do not own any Customer Data.
4.2 You shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and we shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of the Customer Data not caused by us.
4.3 Our use of Customer Data shall be limited to the purpose of providing the Subscribed Services to you and for us to meet our obligations under our Agreement.
4.4 You acknowledge and agree that:
(a) we are not obligated to retain any Customer Data for longer than thirty (30) days after termination; and
(b) we have no obligation to retain Customer Data, and may delete Customer Data, if you have materially breached our Agreement. If we terminate our Agreement under clause 9, your right to access the Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data to you.
4.5 We shall use process any Customer Data in accordance with our Data Protection Policy.
5. License to Customer Data
5.1 You grant to us a non-exclusive, worldwide, transferable, royalty free, perpetual license to:
(a) use, copy and otherwise utilise the Customer Data as necessary for us to provide the Subscribed Services in accordance with our Agreement and for us to otherwise meet our obligations under our Agreement; and
(b) use anonymized and aggregated Customer Data in order to improve the Subscribed Services or develop new services.
6. Professional Services
If Professional Services are included in any Order Form you will sign up to the Master Services Agreement which will govern the provision of the Professional Services by us.
7. Intellectual Property Ownership
7.1 We (and our licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Subscribed Services (including Nazca Service’s Materials) including any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works.
7.2 To the extent that you or any person acting on your behalf acquires any Intellectual Property Rights in the Subscribed Services and/or Nazca Service’s Materials, you shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to us or such third party as we may elect. You shall execute and do such things as we may consider necessary to give effect to this clause.
7.3 Except as set out in the Order Form, we have no obligation to deliver any copies of any software to you in connection with our Agreement or the Subscribed Services.
8. Fees and Payment
8.1 You shall pay the Fees as specified on each Order Form.
8.2 Any amounts paid are non-refundable.
8.3 All Fees are payable in advance. In respect of fees payable for usage which exceeds the usage amounts set out in the Order Form we will invoice in arrears.
8.4 Unless otherwise stated in the Order Form, payment is to be made immediately on the date of our invoice, without offsets or deductions of any kind, and payment is due in Pounds Sterling.
8.5 The Fees are exclusive of VAT which you shall pay at the rate and in the manner prescribed by law.
8.6 You agree to provide us with accurate billing and contact information, including your legal company name, postal address, e-mail address, and name and telephone number of an authorised billing contact and Administrator. You agree to update this information via the Platform Portal within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, we can terminate your access to the Subscribed Services in addition to any other legal remedies we may have. In the event that the Order Form sets out any further information you must provide, please provide such information either directly to us or via the method set out in the Order Form.
8.7 We can modify our Fees with respect to the Subscribed Services and introduce new charges to become effective upon each Renewal Term. Any modifications will be noted in the renewal/ upgrade pricing on the Platform Portal. If you do not provide notice of termination to us in accordance with the terms of our Agreement, such Fee changes shall become effective at the commencement of the next Renewal Term.
8.8 In the event you fail to make payments you agree to pay all reasonable legal fees and costs incurred by us in connection with our collection of such payments.
9. Term and Termination
9.1 The term of our Agreement shall begin on the Order Form Effective Date of the first Order Form and shall continue in effect until all underlying Order Forms with you have expired in accordance with the terms of such Order Form(s), or if our Agreement is terminated earlier, as provided in this MSLA.
9.2 The term of an applicable Order Form will begin on the Order Form Effective Date and shall continue for the Initial Subscription Term. In the event that an Order Form contains Subscribed Services added to an existing subscription, such added Subscribed Services, with the exception of Professional Services, shall be billed on a pro-rated basis and will be coterminous with the Initial Subscription Term or Renewal Term of such Order Form, as applicable. If an Order Form contains Professional Services, these fees shall be in the applicable Master Services Agreement.
9.3 We may terminate our Agreement at any time and for any reason by giving no less than 30 days’ prior written notice.
9.4 We may terminate our Agreement (as a whole) or in part or any Subscribed Service by terminating any Order Forms then in effect if:
(a) you commit a material breach of our Agreement and such breach is not remediable;
(b) you commit a material breach of our Agreement which is not remedied within 30 days of receiving written notice of such breach; or
(c) you have received a winding up petition presented or enters into liquidation whether compulsory or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or make an arrangement with your creditors, or petition for an administration order, or have a receiver, administrator or manager appointed over any of your assets, or a court or arbiter with authority to so determine that the debtor is unable to pay its debts.
9.4 Immediately on termination or expiry of our Agreement (for any reason), the rights granted by us shall terminate and you shall (and procure that each User shall):
(a) stop using the Subscribed Services; and
(b) destroy and delete or, if requested by us, return any copies of the Nazca Services Materials in your possession or control (or in the possession or control of your Users).
10. Non-Payment and Suspension
10.1 In addition to any other rights granted to us in our Agreement, we can suspend or terminate our Agreement and your access to the Subscribed Services if your account becomes delinquent and is uncured for a period of thirty (30) days.
10.2 You will continue to be charged for Fees during any period of suspension due to your delinquency. If we initiate termination of our Agreement for cause, you will be obligated to pay all remaining Fees payable for the remainder of the applicable Order Form’s Initial Subscription Term or Renewal Term, as applicable.
11. Representations & Warranties
11.1 We both warrant that we have the legal power and authority to enter into our Agreement and that we have validly done so.
11.2 We warrant that the Subscribed Services will perform substantially in accordance with the relevant product information as found at https://www.nazca-services.com, under normal use and circumstances. In the event of a breach of this warranty, your sole remedy and our sole obligation will be to make reasonable commercial efforts to correct the non-conformity or, if we are unable to correct the non-conformity within ninety (90) days after your written notice, for you to terminate the applicable Order Form and receive a refund on a pro-rata basis of any prepaid unused Fees under such Order Form.
12. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN CLAUSE 11, WE (INCLUDING OUR LICENSORS) MAKE NO ADDITIONAL WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SUBSCRIBED SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY WARRANTY ON OUR BEHALF TO ANY THIRD PARTY.
13. Force Majeure
We shall have no liability for any failure or delay in performance of our Agreement to the extent the same results from any event beyond our reasonable control.
14. Indemnification
14.1. Our indemnity
We shall indemnify you, and at your request defend, you from and against any and all Losses which arise out of or relate to any third party claim that the Subscribed Services infringe any Intellectual Property Rights of a third party, provided that you:
(a) promptly give written notice of any claim or liability for which indemnification is sought (“Claim”);
(b) allow us sole control of the defence and settlement of the Claim and make no comment or admission and take no action that may adversely affect your ability to defend or settle the Claim; and
(c) provide us with all reasonable assistance, at our expense.
14.2 If we receive information about an infringement claim related to the Subscribed Services, we may, in our discretion and at no cost to you:
(a) modify such Subscribed Services so that they no longer infringe;
(b) obtain a license for your continued use of such Subscribed Services in accordance with our Agreement; or
(c) terminate your subscriptions for such Subscribed Services upon 30 days’ written notice and refund you any prepaid Fees covering the remainder of the term of the terminated Subscribed Services.
14.3 Clause 14.1 and 14.2 sets out your sole and exclusive remedy for any Claim.
14.4. Your indemnity
You shall indemnify and hold us harmless, and at our request defend, us and our affiliates, successors and assigns (and its and their officers, directors, employees, sublicensees, customers and agents) from and against any and all Losses which arise out of or relate to any:
(a) breach of our Agreement by you; or
(b) any third-party claim or threat of a claim that the Customer Data infringes any Intellectual Property Rights of a third party,
provided we give you sole control of the defence and settlement of the claim (except that you may not settle any claim unless it unconditionally releases us of all liability), and give you all reasonable assistance, at your expense.
14.5 Clause 14.4 shall survive termination of our Agreement.
15. Limitation of Liability
15.1 IN NO EVENT SHALL WE AND/OR OUR LICENSORS’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO OUR AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
15.2 EXCEPT FOR YOUR LIABILITY UNDER CLAUSE 14.4, IN NO EVENT SHALL YOUR AGGREGATE LIABILITY ARISING FROM OR RELATING TO OUR AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
15.3 IN NO EVENT SHALL EITHER OF US AND/OR OUR LICENSORS BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, DATA LOSS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, OUR AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SUBSCRIBED SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SUBSCRIBED SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Notice
16.1 All legal notices must be delivered in writing (a) in person, or (b) by post to the address in the Order Form or as otherwise communicated by you or us in writing.
16.2 All other notices from you to us may be made by emailing [email protected] and we may give such other notices to you by emailing your billing contact as specified in the Order Form.
16.3 All notices shall be deemed to have been effective upon receipt or, if earlier, two (2) Business Days after being posted. Either of us may change our address by giving timely notice of the new address and identifying in such notice the date on which such change is effective.
16.4 You agree to maintain your latest address, billing details, card details and user details updated using the Subscribed Services profile or similar function within the Subscribed Services. We will consider this address to be your current address.
17. Assignment
You may not assign or otherwise deal with your rights or obligations under our Agreement to any third party except upon our prior written consent.
18. Confidentiality
18.1 We will both have access to Confidential Information belonging to the other during the Subscription Service Period.
18.2 For the purposes of our Agreement, Confidential Information does not include that which:
(a) is already in the receiving party’s possession at the time of disclosure to the receiving party;
(b) is or becomes part of public knowledge other than as a result of any action or inaction of the receiving party;
(c) is obtained by the receiving party from an unrelated third party without a duty of confidentiality; or
(d) is independently developed by the receiving party.
18.3 The receiving party shall not use Confidential Information of the disclosing party for any purpose other than is necessary for the performance of its express rights and obligations under our Agreement. The receiving party shall not disclose Confidential Information of the disclosing party to any third parties except as otherwise permitted in our Agreement.
18.4 The receiving party may disclose Confidential Information of the disclosing party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality of the Confidential Information under provisions no less restrictive than those required by the receiving party for its own Confidential Information. The receiving party shall maintain Confidential Information of the disclosing party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each party shall advise the other party in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
18.5 Notwithstanding the foregoing, our Agreement shall not prevent the receiving party from disclosing Confidential Information of the disclosing party to the extent required by a judicial order or other legal obligation, provided that, in such event, the receiving party shall promptly notify the disclosing party to allow intervention (and shall cooperate with the disclosing party) to contest or minimize the scope of the disclosure (including application for a protective order).
18.6 Either of us may disclose the terms and conditions of our Agreement:
(a) as required by Applicable Law;
(b) in confidence, to legal counsel;
(c) in confidence, to accountants, banks, and financing sources and their advisors; and
(d) in connection with the enforcement of our Agreement or any rights in our Agreement.
19. General
19.1 Jurisdiction and Governing law: Our Agreement is governed by the law of England and Wales and any disputes, actions, claims or causes of action arising out of or in connection with it shall be subject to the exclusive jurisdiction of the English courts.
19.2 Severance: If any provision of our Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
19.3 Relationship: No joint venture, partnership, employment, or agency relationship exists between us because of our Agreement or your use of the Subscribed Services.
19.4 Waiver: The failure of either of us to enforce any right or provision in our Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other in writing.
19.5 Entire Agreement: Our Agreement comprises the entire agreement between us regarding its subject matter and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between us regarding such subject matter.
19.6 Third Party Rights: A person who is not a party to our Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
19.7 Publicity: You consent to us using your name in our sales and marketing literature (including our website).
SCHEDULE 1
DEFINITIONS
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“Administrator(s)” means those persons designated by you who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer your use of the Subscribed Services;
“Agreement” as defined in the Introduction;
“Applicable Laws” means as applicable from time to time (a) the laws of England and Wales; (b) any other laws; and (c) any policies, guidelines or industry codes made by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business, which apply to the performance of the Subscribed Services or to which either party is subject;
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday in England;
“Confidential Information” means any information, however conveyed or presented, that relates to the business affairs, operations, processes, budgets, pricing, policies, product information, strategies, developments, trade secrets, know-how, personnel, customers and/or suppliers of the disclosing party together with all information derived by the receiving party from such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”) or which ought reasonably to be considered to be confidential;
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Subscribed Services, other than Customer Data;
“Customer” as set out in the Order Form;
“Customer Data” means all data (in any form) that you or your Users, subscribers or partners may disclose or submit to us or that is uploaded or hosted on any part of the Subscribed Service by you or your Users;
“Data Protection Policy” means our policy setting out how we use and process your Customer Data available at https://www.nazca-services.com/legal-stuff/;
“Documentation” means the description of the relevant Subscribed Service (as updated from time to time) and any instructions as to how to use that part of the Subscribed Services made available by us;
“Fees” means the fees for the Subscribed Services set out in the Order Form together with any other amounts payable by you to us under our Agreement;
“Initial Subscription Term” the initial subscription period of the Subscribed Services as set out in the Order Form;
“Intellectual Property Rights” means rights in inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world whether registered or not;
“Losses” means all losses, claims, liabilities, costs, awards, fines, penalties, expenses (including reasonable legal fees and other professional expenses) and damages of any nature whatsoever and whether or not reasonably foreseeable or avoidable;
“Master Services Agreement” means the agreement under which we provide integration related professional services;
“Nazca Services Materials” means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided or made available by us or on our behalf;
“Order Acceptance” means the effective date of the relevant Order Form;
“Order Form” means the order form entered into by you and us which sets out the Subscribed Services and incorporates the terms of this MSLA and any documents referred to in it;
“Order Form Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective;
“Permitted Purpose” means use solely for your or your nominated affiliates’ (as set out in the Order Form) internal business operations in accordance with the terms of our Agreement;
“Professional Services” means the provision of professional services by our consultants or other personnel as outlined in the Order Form which shall be provided in accordance with the terms of the Master Services Agreement.
“Renewal Term” means each subsequent renewal period beginning on the expiration of the Initial Subscription Term;
“Subscribed Services” means each service to which you have subscribed as set out in the Order Form (and Subscribed Service shall refer to each respective service separately);
“Subscribed Service Period” means, subject to earlier termination, in respect of each Subscribed Service, the duration during which such services are to be provided as initially set out in the Order Form including any Renewal Terms;
“Subscribed Territory” means, in respect of the relevant Subscribed Service, the territories identified in the Order Form except to the extent it is illegal (including as a result of any embargo) under the laws of England and Wales (as binding on any person) for the Subscribed Service to be provided to or received within such territories from time to time;
“Users” means in respect of the relevant Subscribed Service, the users authorised by you to use that Subscribed Service in accordance with the terms of our Agreement.
This Agreement was last updated on 20th August. 2020