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PARTIES

DATA CONNECT GROUP LIMITED incorporated and registered in England and Wales with company number 11058840 registered office is at 4 Wharfe Mews, Cliffe Terrace, Wetherby, West Yorkshire, United Kingdom, LS22 6LX (Data Connect); and the legal entity set out in the Statement of Works or Purchase Order who purchases the goods, services and/or Managed Services, from Data Connect (the Customer).

BACKGROUND

(A) Data Connect has developed and makes available the Available Services to certain customers.

(B) The Customer wishes to be able to engage Data Connect to provide the Available Services in its business operations and acknowledges that by ordering certain Available Services that the specific terms set out in this agreement which relate to those particular Available Services shall then apply, subject to the terms of an agreed and executed Statement of Work relating to the relevant Services.

(C) Data Connect has agreed to provide, and the Customer has agreed to take and pay for, the Services, subject to the terms and conditions of this agreement (that apply to those Services) and execution of an appropriate Statement of Work by the parties.

(D) The parties acknowledge and agree that, as at the date of this Agreement, certain services are being provided by Data Connect to the Customer pursuant to an existing contract. Those services shall continue to be provided pursuant to the terms of the existing contract unless and until a valid Statement of Work is agreed between the parties, relating to the relevant services, which expressly refers to this Agreement.

AGREED TERMS

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause 1 apply in this agreement.

Acceptance Date: has the meaning given in clause 5.5.

Assets: any Customer-site Equipment, Software or Intellectual Property Rights used by Data Connect exclusively for the delivery of the Services to the Customer.

Available Services: the list of service types set out in Schedule 2.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Change Control Procedure: the procedures set out in clause 17.

Charges: the sums payable for the Works as set out in a Statement of Work.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, consultants, officers, representatives, advisers, agents or sub-contractors involved in the provision or receipt of the Services (together, its Representatives) to the other party or that party’s Representatives in connection with this agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.

CSRs: means the customer service representatives who are from time to time authorised by the Customer to liaise with Data Connect for the purposes as may be set out in Schedule 3 or the persons set out in the relevant Statement of Work.

Customer Account Team: the individuals appointed by the Customer from time to time who shall serve as Data Connect’s primary contacts for Data Connect’s activities under this agreement. The initial members of the Customer Account Team, where applicable, are listed in the SoW.

Customer Data: any information that is provided by or on behalf of the Customer to Data Connect as part of the Customer’s use of the Services, including any information derived from such information.

Customer Personal Data: any personal data comprised in the Customer Data.

Customer Site: any premises occupied by the Customer at which it receives the Services.

Customer-site Equipment: any equipment, including Hardware, located or to be located on a Customer Site owned and/or managed by the Customer including to the extent any Hardware operates or functions as a Device. Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which interfaces with Data Connect’s System in order for the Customer to receive the Services, but excluding the Customer-site Equipment.

Customer’s Project Manager: The Customer’s Project Manager at the Effective Date as named in the Statement of Work.

Customer Software: has the meaning given to that term in the definition of Software.

Cybersecurity Requirements: all applicable laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions relating to security of network and information systems and security breach and incident reporting requirements, including the Data Protection Legislation, the Cybersecurity Directive (EU) 2016/1148), Commission Implementing Regulation (EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Data Connect Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by Data Connect to deliver the Services to the Customer as set out in the Specification or as agreed to be provided under the relevant Statement of Work.

Data Connect’s Project Manager: the member of Data Connect’s Account Team appointed in accordance with clause 5.1.

Data Connect Software: has the meaning given to that term in the definition of Software.

Data Connect’s System: the information and communications technology system to be used by Data Connect (or any of its sub-contractors) in performing the Services, including the Hardware, the Software, and communications links between the same and the Hardware, Customer-site Equipment and the Customer’s Operating Environment.

Data Controller: has the meaning given to that term in the Data Protection Legislation.

Data Processor: has the meaning given to that term in the Data Protection Legislation.

Data Protection Legislation: means (i) the Data Protection Act 2018, (ii), the General Data Protection Regulation ((EU) 2016/679) (the GDPR) (unless and until the GDPR is no longer directly applicable in the UK), (iii) any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and (iv) any successor legislation to the GDPR or the Data Protection Act 2018.

Data Subject: has the meaning given to that term in the Data Protection Legislation.

Designated Representative: has the meaning given in clause 36.2.

Device: means a distinct physical hardware unit or virtual machine/environment, in either case as provided or prescribed by Data Connect, in writing from time to time.

Disaster Recovery Plan: the plans maintained by Data Connect containing the actions to be taken, the resources to be used and the procedures to be followed to support recovery in the event of a disaster affecting the Services.

Device: means a distinct physical hardware unit or virtual machine/environment, in either case as provided or prescribed by Data Connect, in writing from time to time. Dispute: has the meaning given in clause 35.1.

Dispute Notice: has the meaning given in clause 36.1.

Dispute Resolution Procedure: the procedure described in clause 36.

Effective Date: the date of this agreement.

Employment Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) as amended or replaced or any other Regulations implementing the Acquired Rights Directive;

Error: has the meaning given in clause 5.3.

Event: means a report or burst of information or other electronic communication sent from a Device to Data Connect’s systems containing log data.

Events Per Second (EPS): means the number of Events per second (in time) that a Device produces and sends (or attempts to send) to Data Connect System. The agreed EPS limit shall be set out in the Statement of Work in relation to the relevant Subscription and where applicable shall be set out for each type of Device.

Exit Plan: has the meaning given in clause 23.1, as such exit plan is updated and amended by the parties from time to time in writing.

Extended Term: has the meaning given in clause 22.1.

Force Majeure Event: has the meaning given in clause 24.1.

Generally Accepted Accounting Principles: all generally accepted accounting principles including generally accepted UK accounting principles comprising the Financial Reporting Standards issued by the UK Financial Reporting Council (and to the extent applicable, Statements of Standard Accounting Practice (SSAPs) issued by predecessors to the UK Financial Reporting Council).

Good Industry Practice: the standards that fall within the upper quartile for the provision of business-critical services substantially similar or identical to the Services, having regard to factors such as the nature and size of the parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors.

Initial Term: the period from the Effective Date until the first anniversary of the Effective Date unless otherwise expressly set out in the relevant SoW.

Invention: any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Log Information: means the data or information sent by a Device to Data Connect’s System according to any particular calibration or format set out in the Services Specification.

Maintenance: any error corrections, Updates and upgrades that Data Connect may provide or perform with respect to the Services, as well as any other support or training services to be provided to the Customer under this agreement, all as described in Schedule 3.

Maintenance Action: has the meaning given in Schedule 3.

Normal Business Hours: 09.00 am to 05.30pm local UK time on Business Days.

Permitted Purpose: has the meaning given in clause 20.2.1.

Personal Data: has the meaning given to that term in the Data Protection Legislation

Priority 1, 2, 3 and (where applicable) 4 Incidents: have the meanings given to them in each of the tables, as applicable, as expressly set out in Schedule 3. For the avoidance of doubt, any such SLAs set out in an SoW shall take precedence over Schedule 3.

Processing: has the meaning given to that term in the Data Protection Legislation (and Process and Processes shall be construed accordingly).

Project Plan: the implementation plan for a Service as set out in the relevant Statement of Work.

Purchase Order: a documented written request to purchase goods or services from Data Connect.

Regulatory Requirement: has the meaning given in clause 22.11.

Relevant Transfer: a transfer of employment to which the Employment Regulations applies;

Replacement Supplier: any entity with which the Customer contracts (or proposes to contract) to provide services similar to all or any of the Services and Maintenance upon the expiry or termination of all or any part of this agreement for any reason.

Representatives: has the meaning given to that term in the definition of Confidential Information.

Review Meeting: has the meaning given in clause 18.3.

Service Credit: any credits payable to the Customer in accordance with the Service Level Arrangements.

Service Delivery Failure: has the meaning given in the relevant Statement of Work.

Service Level Arrangements: the service level arrangements set out in the relevant Statement of Work or, if not set out therein, then according to Schedule 3. For the avoidance of doubt, any SLAs set out in an SoW shall take precedence over those in Schedule 3.

Services: the services selected from the Available Services and as described in the Services Specification to be performed by Data Connect in accordance with this agreement and the applicable Statement of Work including where applicable the Setup Services, the Maintenance and the Transition Services.

Services Specification: the specification for the Services as set out in the relevant Statement of Work.

Set-up Services: the due diligence, configuration and related work referred to in clause 5 and the relevant Statement of Work, to be performed by Data Connect to set up the Services.

Software: any software used by Data Connect (or any of its sub-contractors) to provide the Services to the Customer whether owned by a third party and licensed by Data Connect (Third Party Software) to the Customer or provided by the Customer (Customer Software).

Statement of Work (“SoW”): a detailed plan, agreed in accordance with this Agreement, describing the relevant Available Services to be provided by Data Connect, the timetable for their performance and the related matters listed in, and in a substantially similar format to the pro-forma statement of work set out in Schedule 1.

Third Party Software: has the meaning given to that term in the definition of Software.

Transferring Contracts: the third-party contracts (including licences to Third-Party Software) that Data Connect reasonably considers necessary to enable the transition of the Services to the Customer or any Replacement Supplier on expiry or termination of all or any part of this agreement for any reason.

Transition Services: the services to be provided by Data Connect to implement the Exit Plan.

Update: means any minor point release that Data Connect provides as a matter of course as a general update for all of its Customers on the same package as specified in the Services Specification. Uptime Service Level: has the meaning given in the relevant Statement of Work in relation to the relevant SLA.

Version: means a major point release or other new version of the Software or any Firmware which introduces new functionality or other improvements to which the Customer is not usually entitled under standard maintenance and support made available or offered by Data Connect as part of the Services where expressly ordered under an SoW.

Virtual Security Operations Centre: means facility provided by Data Connect to provide cyber security resource, expertise, systems and services.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Work Product: all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trade-marks, know-how, algorithms, software, computer code, routines or sub-routines, specifications, plans, notes, drawings, designs, pictures, images, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by Data Connect (or any of its sub-contractors) in connection with the Services or which relate in any manner to the Services or which result from any work performed by Data Connect (or any of its sub-contractors) for the Customer, including any and all Intellectual Property Rights therein.

Works: the Available Services which are provided by Data Connect under a Statement of Work, including services which are incidental or ancillary to the Services.

1.2. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.

1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.6. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.7. A reference to writing or written includes email but not faxes.

1.8. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.

1.9. References to clauses and Schedules are to the clauses and schedules of this agreement. References to paragraphs are to paragraphs of the relevant Schedule.

1.10. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assignees.

1.11. A reference to this agreement includes the Schedules and the recitals. If there is an inconsistency between any of the provisions in the main body of this agreement and the schedules, the provisions in the main body of this agreement shall prevail.

1.12. In the event of any conflict between the terms of any document incorporated into this Agreement, the following order of precedence shall apply:

1.12.1. the Standard Terms and Conditions (unless expressly stated herein that a Statement of Work shall take precedence on any particular matter); and

1.12.2. the Statement of Work applying to the relevant Service.

2. COMMENCEMENT AND DURATION

2.1. A Contract shall be formed either:

2.1.1. upon the date of last signature of a written agreement between the parties; or

2.1.2. when Data Connect issues a written acceptance, or otherwise completes processing of a Purchase Order.

2.2. For the avoidance of doubt any quotation given by Data Connect shall not constitute an offer and may be withdrawn at any time by Data Connect and any Purchase Order issued by the Customer shall constitute an offer to purchase goods and/or services in accordance with the quotation (if any) provided by Data Connect, and these Standard Terms and Conditions.

2.3. In the event and to the extent only of any conflict or inconsistency between the provisions of:

2.3.1. the clauses of these Standard Terms and Conditions;

2.3.2. the body of the Statement of Works; or

2.3.3. any other document specifically referred to in the Statement of Works; then the order of precedence shall be as set out in this clause 2.3 with 2.3.1 having the highest priority provided that where any clause in the Statement of Works is expressly stated to have priority over another specifically referenced provision then that clause in the Statement of Works shall take precedence.

2.4. Subject to an earlier termination in accordance with clause 22, the agreement shall commence on the Effective Date for the Initial Term and shall automatically extend for successive twelve (12) month periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term. A party may give written notice to the other party, not later than ninety (90) days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

2.5. The existence of this Agreement and/or the fact that it is in force does not by itself require any Services to be provided or purchased by either party unless and until a Statement of Work has been duly executed by the Parties.

2.6. For the avoidance of doubt any termination of this agreement shall not automatically terminate an existing Statement of Work unless expressly set out in the termination. Existing Statements of Work shall continue until their natural expiry or termination in accordance with their own terms as expressly stated in that Statement of Work.

2.7. If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 2, such notice shall terminate this agreement with immediate effect.

2.8. The parties shall not enter into any further Statements of Work after the date on which notice to terminate this agreement is served under clause 2.

2.9. The Customer may procure any of the Available Services by agreeing a Statement of Work with Data Connect pursuant to clause 3 (Statements of Work).

2.10. Data Connect shall provide the Works from the date specified in the relevant Statement of Work.

3. STATEMENTS OF WORK

3.1. Each Statement of Work shall be agreed in the following manner:

3.1.1. the Customer shall ask Data Connect to provide any or all of the Available Services and provide Data Connect with as much information as Data Connect reasonably requests in order to prepare a draft Statement of Work for the Available Services requested;

3.1.2. following receipt of the information requested from the Customer Data Connect shall, as soon as reasonably practicable either:

3.1.2.1. inform the Customer that it declines to provide the requested Available Services; or

3.1.2.2. provide the Customer with a draft Statement of Work.

3.1.3. if Data Connect provides the Customer with a draft Statement of Work pursuant to clause 3.1.2.2, Data Connect and the Customer shall discuss and agree that draft Statement of Work; and

3.1.4. both parties shall sign the draft Statement of Work when it is agreed.

3.2. Unless otherwise agreed in writing between the parties, the Charges payable by the Customer to Data Connect in relation to the provision of any Service shall be calculated in accordance with the relevant SoW.

3.3. Data Connect may charge for the preparation of Statements of Work on a time and materials basis in accordance with Data Connect’s standard daily fee rates where agreed in writing in advance by the Customer.

3.4. Once a Statement of Work has been agreed and signed in accordance with clause 3.1.4, no amendment shall be made to it except in accordance with the provisions of this agreement relating to Change control pursuant to clause 17 or a Variation pursuant to clause 30.3.

3.5. Each Statement of Work shall read alongside and in conjunction with this agreement and shall not form a separate contract to it. Each executed Statement of Work shall form a separate contract when read alongside these terms.

4. DATA CONNECT’S RESPONSIBILITIES

4.1. Data Connect shall use reasonable endeavours to provide the Works, and deliver the Deliverables to the Customer, in accordance with the relevant Statement of Work.

4.2. Data Connect shall provide the Works with reasonable care and skill.

4.3. Data Connect shall use reasonable endeavours to meet the Project Plan specified in the relevant Statement of Work but any such dates shall be estimates only and time for performance by Data Connect shall not be of the essence of this agreement.

4.4. Data Connect shall appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind Data Connect on all matters relating to the relevant Works (including by signing Change Orders). Data Connect shall use all reasonable endeavours to ensure that the same person acts as Data Connect’s manager throughout the term of the relevant Statement of Work, but may replace that person from time to time where reasonably necessary in the interests of Data Connect’s business and following prior written notice to the Customer.

4.5. Data Connect shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Customer’s premises and that have been communicated to it, provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.

5. SET-UP SERVICES

5.1. This clause applies where Set Up Services are included in any Statement of Work. Data Connect shall appoint Data Connect’s Project Manager, who shall have the authority to contractually bind Data Connect on all matters relating to this agreement. Data Connect shall use reasonable endeavours to ensure continuity of Data Connect’s Project Manager, but has the right to replace him from time to time where reasonably necessary in the interests of Data Connect’s business and following prior written notice to the Customer.

5.2. Data Connect shall perform the Set-up Services in accordance with the timetable set out in the relevant Statement of Work. Data Connect shall use reasonable endeavours to meet the performance dates set out in the Statement of Work, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.

5.3. When Data Connect considers that the Services are ready for activation it shall so notify the Customer. Within five Business Days of such notification the Customer shall review the operation of the Services to confirm that they function in material conformance with the Services Specification. If the Services fail in any material respect to conform with the Services Specification, the Customer shall give Data Connect a detailed description of any such non-conformance (Error) in writing, within the five Business Day review period.

5.4. Data Connect shall use reasonable endeavours to correct any Error as soon as reasonably practicable and, on completion, re-submit the Services to the Customer. The provisions of clause 5.3 and this clause 5.4 shall then apply again, up to three additional times. If Data Connect is unable to correct the Error after three attempts, subject to Data Connect offering to have a face-to-face discussion first, then either party may terminate this agreement in respect only of the part of the Services that are affected by the Error, with immediate effect by giving written notice to the other party, without further liability to the other in respect of the Error or failure to provide that part of the Services in accordance with this agreement.

5.5. If the Services are found to conform with the Services Specification or if the Customer does not provide any written comments within the five Business Day review period described in clause 5.3, the Services shall be deemed accepted as from the date of the notification or expiry of the five Business Day review period (in each case the Acceptance Date).

6. SERVICE PROVISION

6.1. Data Connect shall provide the Services from the Acceptance Date until expiry or termination of the relevant Statement of Work.

6.2. The Service Level Arrangements shall apply with effect from the start of the first complete month commencing occurring at least thirty (30) days after the Acceptance Date.

6.3. The Customer shall not store, distribute or transmit to Data Connect in connection with the Services any material that:

6.3.1. is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;

6.3.2. facilitates illegal activity;

6.3.3. depicts sexually explicit images; and/or

6.3.4. promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.

6.4. The Customer shall remain responsible for it’s own use of the Services where not in accordance with the license granted to it under this Agreement and is also responsible for the Customer-site Equipment and the Customer Operating Environment, including any use by third parties (whether fraudulent or invited by the Customer).

6.5. The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Customer by Data Connect in writing. This includes informing Data Connect promptly in the case of the Customer becoming aware that the EPS limit is or may be exceeded or in the event of the Customer becoming aware of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, Data Connect shall work with the Customer to alleviate the situation as quickly as possible. The parties shall discuss and agree appropriate action.

6.6. The Customer shall not provide the Services directly or indirectly to third parties, including acting as a service bureau or equivalent, where such use is not expressly set out under a Statement of Work. For the avoidance of doubt the Customer may take benefit from the Services for its own internal business purposes in order to provide its normal day to day services to clients of the Customer.

6.7. Data Connect reserves the right, following reasonable prior written notice to the Customer (or as soon as possible following any changes made pursuant to an emergency) to:

6.7.1. modify Data Connect’s System, its network, system configurations or routing configuration; or

6.7.2. modify or replace any Hardware, Data Connect Hardware or Software in its network or in equipment used to deliver any Service over its network, provided that this has no materially adverse effect on Data Connect’s obligations under this agreement, Data Connect’s provision of the Services and/or the Service Level Arrangements. If such changes will have an adverse effect, Data Connect shall notify the Customer and the parties shall follow the Change Control Procedure.

6.8. The parties acknowledge and agree that no Transfer is intended to take place within the meaning of the Employment Regulations and each Party agrees to indemnify the other Party for any loss due to any deemed Transfer taking place in relation to the provision of the Services by Data Connect under this agreement or upon any termination of this agreement.

7. PROFESSIONAL SERVICES AND CONSULTANCY

7.1. If a Statement of Work sets out any consultancy or other professional Services to be provided by Data Connect then the terms of this clause 7 (and all sub-clauses under it) shall apply to that part of the Works.

7.2. Data Connect shall ensure that it uses personnel who are suitably trained, experienced and qualified.

7.3. Data Connect shall be responsible for the performance of its personnel through which Data Connect provides the consultancy services.

7.4. Data Connect may substitute any of its personnel who provide consultancy services under this agreement or in relation to any Statement of Work with a contractor or other appropriate substitute and Data Connect shall be liable for those third parties as though they were its own personnel. Such third parties shall be subject to duties of confidentiality equivalent to those set out in this agreement and Data Connect shall ensure that they observe the requirements set out in clause 11 (Customer Data).

8. DELIVERY, INSTALLATION AND DELAYS

8.1. This Clause 8 and each sub-clause under it shall only apply where Data Connect (and not any other Third Party) is providing and installing Hardware. If no Hardware is being provided and installed directly by Data Connect, the remainder of this Clause 8 shall not apply and the Customer shall be solely responsible for the operation of applicable Devices in accordance with the Services Specification. If Hardware is being provided by Data Connect but installed by the Customer then the remainder of this clause 8 shall not apply except for sub-clauses 8.2 and 8.6 relating to Delivery. Data Connect is not responsible for the supply, Delivery or installation of Third Party Hardware. If Data Connect is contracted for Services only, to install Third Party Hardware or Customer owned Hardware, then the rest of this Clause 8 shall not apply.

8.2. Data Connect shall deliver each item of Data Connect Hardware and the relevant Software to the Site(s) on or before the applicable Delivery Date for that item.

8.3. Data Connect shall supply to the Customer, within a reasonable time before any relevant Delivery Date, such information and assistance as may be necessary to enable the Customer to prepare the Site(s) for the installation.

8.4. The Customer shall, at its own expense, prepare the Site(s) in accordance with the information provided by Data Connect in advance of each relevant Delivery Date. Upon request from the Customer, Data Connect will provide reasonable assistance to carry out such preparation subject to prior agreement on the Charges applicable to such assistance.

8.5. Data Connect shall complete installation of each item of Data Connect Hardware and any relevant Software at the Site(s) by the Installation Date for that item of Data Connect Hardware or Software Module.

8.6. If any delivery is delayed at the request of, or because of the acts or omissions of, the Customer, if applicable, the Project Plan shall be amended to take account of such delay.

8.7. Data Connect shall provide the System on or before the Completion Date specified in the Order Form or the Project Plan.

9. TITLE AND RISK

9.1. This Clause shall only apply where Hardware or other goods are provided by Data Connect under any Statement of Work.

9.2. Property in Data Connect Hardware shall only pass to the Customer on receipt by Data Connect in cash or cleared funds payment in full of the total cost of the Hardware provided by Data Connect to the Customer where such cost is expressly set out as a Hardware Purchase Price in a Statement of Work.

9.3. Property shall otherwise at all times remain vested in Data Connect or its licensor, and Data Connect’s rights shall be governed by the terms of any license relating to such Hardware, including its firmware.

9.4. Risk in Data Connect Hardware shall pass to the Customer:

9.4.1. If delivered by Data Connect to a place nominated by the Customer, when tendered for delivery at that place; or

9.4.2. If collected by the Customer then, when loaded onto the Customer’s (or its agent’s) vehicle, or at such time as they are available for so loading and would have been loaded but for the Buyer’s failure to collect them.

9.4.3. If withheld by Data Connect for any valid reason, at such time as Data Connect would have been able to collect them had Customer not been so withholding them,

9.4.4. And the Customer is responsible for insuring the hardware and software from any such time.

9.5. Until such time as property in Data Connect Hardware passes to the Customer:

9.5.1. The Customer shall hold the Hardware as Data Connect’s fiduciary agent and bailee and shall keep all such items separate and distinct from those of the Customer and Third Parties, and separately stored, protected and adequately insured, and identified as Data Connect’s property. Until such time, the Customer shall be entitled to resell or use such items in the ordinary course of its business, but shall account to Data Connect for the proceeds of sale or otherwise of such items, whether tangible or intangible, including insurance proceed, and shall keep all such proceeds separate and distinct from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and adequately insured; and

9.5.2. Provided that the hardware is still in existence and has not been resold then Data Connect shall be entitled at any time to require the Customer to deliver up the Hardware to Data Connect and, if the Customer fails to do so forthwith, to enter on any premises of the Buyer or any third party where such items are stored and repossesses them. The Customer will indemnify Data Connect for and loss of degradation of or damage to any Hardware caused whilst such Hardware is in the possession or under the control of the Customer.

9.6. Any Hardware and/or Software supplied to the Customer which is subject to any restrictions or provisions imposed by the manufacturers and/or licensor’s standard terms and conditions (including but not limited to click-through end-user-license agreements, copyright notices and acceptable use policies) are supplied to the Customer by Data Connect subject to any such conditions and on the terms of any applicable license agreement.

9.7. The Customer is not entitled to pledge or in any way charge by way of security for any indebtedness any Data Connect Hardware and/or Software which remain the property of Data Connect (or its licensor) but, if the Customer does so, then all moneys owing by the Customer to Data Connect shall (without prejudice to Data Connects other rights and remedies) become immediately due and payable, including the reasonable cost of any affected Data Connect Hardware.

10. DATA CONNECT PERSONNEL: SYSTEM AND SUPPORT SERVICES

10.1. This clause and each sub-clause under it shall only apply where:

10.1.1. Connect is providing and installing Hardware requiring the attendance of Data Connect Personnel; or

10.1.2. Data Connect is providing Consulting Services; or

10.1.3. Data Connect is providing Support Services; or

10.1.4. Data Connect is providing Maintenance Services.

10.2. Data Connect undertakes that its employees and contractors, while on the Site(s) or any other premises of the Customer, will comply with all relevant rules and regulations laid down by the Customer from time to time for the behaviour of its own employees and contractors, as notified to Data Connect in writing to it from to time. Data Connect shall remove any employee or contractor whom the Customer can demonstrate has failed to comply with such rules, regulations and requirements.

10.3. Data Connect alone shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of its own employees. Data Connect assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of the Customer.

10.4. During the term of this agreement and for a period of six months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any affiliate or associate to solicit, the employment of any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Services or any part of them. Nothing in this clause 10.4 shall prevent either party from recruiting any person, via a third party recruitment agency or as a result of a public advertisement. Each party further agrees that it shall not provide any lists or names of specific individuals to such agencies of persons employed by the other party as described in this clause 10.4.

10.5. Any advice or other statement given as part of the Works but where not expressly required and set out in a Statement of Work shall not be relied upon by the Customer and is given as guidance only. Where Data Connect provides advice as part of the Services then the Customer may not hold out that advice to any third party as being reliable and that advice is intended for the specific and limited benefit of the Customer directly.

11. CUSTOMER DATA

11.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

11.2. The parties acknowledge that:

11.2.1. if Data Connect Processes any Personal Data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the data controller and Data Connect is the Data Processor for the purposes of the Data Protection Legislation.

11.2.2. Schedule 4 sets out the scope, nature and purpose of Processing by Data Connect, the duration of the Processing and the types of Personal Data and categories of Data Subject.

11.2.3. the Personal Data will not be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and Data Connect’s other obligations under this agreement, unless such transfer is required by any applicable laws or Data Connect has obtained the prior written consent of the Customer (such consent to be subject to Data Connect meeting the conditions set out in clause 11.4.3).

11.3. Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Data Connect for the duration and purposes of this agreement so that Data Connect may lawfully use, Process and transfer the Personal Data in accordance with this agreement on the Customer’s behalf.

11.4. Without prejudice to the generality of clause 11.1, Data Connect shall, in relation to any Personal Data Processed in connection with the performance by Data Connect of its obligations under this agreement:

11.4.1. Process that Personal Data only on the written instructions of the Customer unless Data Connect is required by the laws of any member of the European Union or by the laws of the European Union applicable to Data Connect to Process Personal Data (Applicable Laws). Where Data Connect is relying on laws of a member of the European Union or European Union law as the basis for Processing Personal Data, Data Connect shall promptly notify the Customer of this before performing the Processing required by the Applicable Laws unless those Applicable Laws prohibit Data Connect from so notifying the Customer;

11.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

11.4.3. not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:

11.4.3.1. the Customer or Data Connect has provided appropriate safeguards in relation to the transfer;

11.4.3.2. the data subject has enforceable rights and effective legal remedies;

11.4.3.3. Data Connect complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

11.4.3.4. Data Connect complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data;

11.4.4. assist the Customer, at the Customer’s cost (any such costs to be agreed in writing between the parties), in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

11.4.5. notify the Customer without undue delay on becoming aware of a Personal Data breach;

11.4.6. ensure that persons authorised to Process the Personal Data have committed themselves to a duty of confidentiality or are under an appropriate statutory obligation of confidentiality;

11.4.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and

11.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 11.

11.5. The Customer consents to Data Connect appointing IT Security Consultants or Hosting Service Providers as third-party processors of Personal Data under this agreement. Data Connect confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 11. As between the Customer and Data Connect, Data Connect shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.

11.6. Data Connect shall follow its archiving and security procedures for Customer Data, including those set out in clause 13 (Security).

11.7. Data Connect shall without undue delay notify the Customer in writing of any actual or suspected loss or damage to the Customer Data.Without prejudice to any remedy for breach of confidentiality or Personal Data available to the Customer under this Agreement or otherwise, in the event of any loss or damage to Customer Data where the Customer has expressly ordered back-up products under a Statement of Work, the Customer’s sole and exclusive remedy shall be for Data Connect to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup (where applicable) of such Customer Data to be maintained by Data Connect in accordance with its archiving procedure. Data Connect shall not be responsible for any loss, destruction, alteration or unauthorised access to or disclosure of Customer Data caused by any third party (except those third parties sub-contracted directly by Data Connect to perform services related to Customer Data maintenance and back-up where the Customer does not have a direct relationship with that third party). This clause 11.7 is without prejudice to the generality of clause 11.1..

12. DATA CONNECT’S OBLIGATIONS

12.1. Data Connect undertakes that the Services will be performed with reasonable skill and care and in accordance with Good Industry Practice and the provisions of this agreement that the Services will be provided in accordance with the Services Specification.

12.2. The undertaking in clause 12.1 shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to Data Connect’s instructions.

12.3. If the Services do not conform with the undertaking in clause 12.1, Data Connect shall, at its expense, use all reasonable commercial endeavours to correct any such nonconformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking in clause 12.1. This clause 12.3 is without prejudice to the Customer’s rights to claim applicable Service Credits and/or any right of the Customer to terminate the agreement pursuant to material breach (excluding minor persistent breaches) in relation to the availability of the Services pursuant to clause 22.

12.4. Notwithstanding the foregoing, Data Connect does not warrant that the Customer’s use of the Services shall be uninterrupted or error-free.

12.5. This agreement shall not prevent Data Connect from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this agreement.

13. SECURITY

13.1. Data Connect shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Services, Data Connect’s System and related networks or resources and the Customer Data, in accordance with Good Industry Practice. Such technical and organisational measures shall include (without limitation) those measures set out in Schedule 5.

13.2. Data Connect shall ensure that Data Connect’s System is designed, maintained and upgraded at all times so as to minimise the risk of attack by Viruses. The parties agree that if Viruses are found, each of them shall co-operate with the other to reduce the effect of the Viruses and, particularly if Virus causes loss of operational efficiency or loss or corruption of Customer Data, assist each other to mitigate any losses and restore the Services to their original operating efficiency. The costs of complying with this clause 13.2 shall be apportioned between the parties on a pro rata basis according to fault.

13.3. Data Connect shall promptly inform the Customer if it suspects or uncovers any breach of security and shall use all commercially reasonable endeavours to promptly remedy such breach.

13.4. The Customer shall have the right, in its absolute discretion, to require Data Connect not to use specified individuals employed or engaged by Data Connect, or by a subcontractor, in the performance of specified elements of the Services. The Customer shall not exercise this right in breach of any law. In the event that the Customer exercises this right, then Data Connect shall inform the Customer of any impact on the Services and shall not be liable for any loss or delay caused by the exercise of this right.

14. CUSTOMER’S OBLIGATIONS

14.1. The Customer shall (unless expressly agreed otherwise in a Statement of Work):

14.1.1. provide Data Connect with:

14.1.1.1. where required, an outbound internet connection and/or assistance in setting up a Virtual Private Network connection to Data Connect’s systems;

14.1.1.2. all necessary co-operation in relation to this agreement; and

14.1.1.3. all necessary access to such information as may be reasonably required by Data Connect, in order to provide the Services, including Customer Data, security access information, and (subject to providing any confidentiality undertakings reasonably required by the Customer) software interfaces to the Customer’s other business applications;

14.1.2. provide such personnel assistance, including the Customer Account Team and other Customer personnel, as may be reasonably requested by Data Connect from time to time. The Customer shall notify Data Connect of any changes to such personnel from time to time;

14.1.3. appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer’s Project Manager, but has the right to replace him from time to time where reasonably necessary in the interests of the Customer’s business;

14.1.4. comply with all applicable laws and regulations with respect to its activities under this agreement, including those set out in clause 26; and

14.1.5. carry out all other Customer responsibilities set out in this agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Data Connect may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.

14.1.6. not knowingly or recklessly allow any third party (unless an authorised representative of Data Connect) to access, modify, maintain or repair any part of the Software or the Hardware or any Work Product provided as part of the Works.

14.1.7. obtain and shall maintain all necessary licences, consents, and permissions necessary for Data Connect, its contractors and agents to perform their obligations under this agreement, including without limitation the Services.

14.1.8. ensure that its network and systems comply with the relevant specifications provided by Data Connect from time to time; and

14.1.9. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Data Connect’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

14.1.10. Maintain and keep in good workable condition Data Connect Hardware or other machinery provided by Data Connect and report promptly any fault or suspected issue to Data Connect.

14.1.11. Return as directed, or permit to be replaced, any Hardware or other machinery provided by Data Connect under this Agreement.

14.1.12. Monitor it’s usage of Devices, as may be notified to it by Data Connect from time to time, and any applicable EPS limit to the extent required to ensure that the Customer’s use of EPS does not exceed the EPS limit and the Customer shall ensure that it considers the need to upgrade any EPS limit to prevent anticipated excessive use over and above the EPS limit.

15. WARRANTIES

15.1. The Customer warrants, represents and undertakes that:

15.1.1. it has the full capacity and authority to enter into and perform this agreement and that this agreement is executed by a duly authorised representative of the Customer;

15.1.2. it has the authority to grant any rights to be granted to Data Connect under this agreement, including the right to provide the Customer Software and Hardware to Data Connect as indicated in this agreement and for the same to be used in the provision of the Services and otherwise in connection with this agreement;

15.1.3. it shall comply with and use the Services in accordance with the terms of this agreement and all applicable laws, and shall not use the services in a way that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws (including but not limited to the transmission or creation of illegal materials and the like) unless such breach or infringement is a direct result of any act or omission of Data Connect;

15.1.4. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to license to Data Connect, any materials reasonably necessary for the fulfilment of all its obligations under this agreement, including any third-party licences and consents in respect of any Customer Software; and

15.1.5. Data Connect’s possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to Data Connect) shall not cause Data Connect to infringe the rights, including any Intellectual Property Rights, of any third party.

15.1.6. Where the Customer uses its own Hardware to host or manage a virtualised Device then it shall ensure such Hardware and the Device and any applicable configuration or settings shall comply with any applicable specification or requirements communicated to it by Data Connect as may be amended from time to time.

15.2. Data Connect warrants, represents and undertakes that:

15.2.1. it has the full capacity and authority to enter into and perform this agreement and that this agreement is executed by a duly authorised representative of Data Connect;

15.2.2. it owns, or has obtained valid licences, consents, permissions and rights to enable Data Connect to comply with this agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this agreement including for the Customer’s use and receipt of the Services, and Data Connect shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;

15.2.3. it shall comply with all applicable laws and regulations in performing its obligations under this agreement;

15.2.4. the Customer’s possession and use in accordance with this agreement of any materials (including third-party materials) supplied by Data Connect to the Customer shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party;

15.2.5. any software, system or telecommunications provided by or on behalf of Data Connect shall be tested for Viruses and any identified Viruses deleted in accordance with Good Industry Practice before the date of delivery or use of such software, systems or telecommunications by Data Connect; and

15.2.6. all personnel and sub-contractors used by Data Connect in the performance of this agreement are adequately skilled and experienced for the activities they are required to perform.

16. CHARGES AND PAYMENT

16.1. The Customer shall pay Set-Up Services Charges set out in the relevant Statement of Work for the Set-up Services and the Subscription Charges set out in the relevant Statement of Work for the Services.

16.2. Only when agreed in writing by the parties in advance, the Customer shall reimburse Data Connect for all actual, reasonable travel costs and expenses including airfares, hotels and meals incurred by Data Connect in performance of the Services including any other non-refundable charges incurred by Data Connect on behalf of the Customer.

16.3. All amounts and Charges stated or referred to in this agreement are exclusive of value added tax, which shall be added to Data Connect’s invoice(s) at the appropriate rate.

16.4. Unless otherwise agreed in writing as part of an applicable SoW, for Charges relating to Professional Services, Data Connect shall invoice the Customer annually in advance. If any Service Credits are due then they shall be shown as a deduction from the invoice.

16.5. The Customer shall pay undisputed amounts under applicable invoices with thirty (30) days of the Customer’s receipt of the invoice issued by Data Connect. If the Customer fails to make any payment due to Data Connect under this agreement by the due date for payment, then, without limiting Data Connect’s remedies under clause 22, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above either 0% or Barclays Bank Plc’s base rate from time to time (whichever is higher). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

16.6. On expiry or termination of this agreement for any reason, any unpaid Service Credits represent a debt due from Data Connect to the Customer.

17. CHANGE CONTROL

17.1. If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.

17.2. If either party requests a change to the scope or execution of the Services Data Connect shall, on request and within a reasonable time, provide a written estimate to the Customer of:

17.2.1. the likely time required to implement the change;

17.2.2. any variations to the Charges arising from the change;

17.2.3. the likely effect of the change on the Project Plan; and

17.2.4. any other impact of the change on the terms of this agreement.

17.3. If Data Connect requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it (and for the avoidance of doubt, any change which will, in the reasonable opinion of the Customer, have an adverse effect on the provision or scope of the Services shall not be deemed to be an unreasonable ground for withholding such consent).

17.4. If either party wishes the other party to proceed with the relevant change referred to in clause 17.3, Data Connect has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its Charges, the Project Plan and any other relevant terms of this agreement to take account of the change.

18. SERVICE REVIEW AND GOVERNANCE

18.1. The Customer’s Project Manager and Data Connect’s Project Manager shall have regular annual meetings (Annual Meetings) to monitor and review the performance of this agreement, to discuss any changes proposed in accordance with clause 17 and to discuss the Service Level Arrangements. These meetings shall be minuted by Data Connect’s Project Manager and copies of those minutes shall be circulated to, and approved by, both parties.

18.2. Before each Annual Meeting, the Customer’s Project Manager shall notify Data Connect’s Project Manager, and vice versa, of any problems relating to the provision of the Services for discussion at the Annual Meeting. At each such meeting, the parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next Annual Meeting.

18.3. A review meeting to assess the performance of Data Connect in the delivery of the Services shall be held at six-monthly intervals (Review Meeting). Each meeting shall be attended by senior representatives of the Customer and of Data Connect, together with the Customer’s Project Manager and Data Connect’s Project Manager.

18.4. The Customer and Data Connect shall review the Service Level Arrangement at each Review Meeting and shall, in accordance with clause 17, agree modifications to reflect changes in the Customer’s requirements for the Services.

18.5. In addition to the meetings set out above (Annual Meeting and Review Meeting) the Customer may request such reasonable high level meetings (an Informal Meeting) with Data Connect as are reasonably necessary to discuss matters relating to this Agreement (including but not limited to ongoing issues and planned future requirements). Data Connect shall not unreasonably refuse such meeting requests and the parties shall agree to meet (or may arrange a telephone discussion) within a reasonable amount of time following such request. Data Connect may reasonably refuse such meeting requests where they are requested to occur within 21 days of the last such Informal Meeting. For the avoidance of doubt, Informal Meetings may be either face to face or by telephone as may be reasonable required in the circumstances.

19. PROPRIETARY RIGHTS

19.1. The Customer acknowledges and agrees that, as between the parties, Data Connect and/or its licensors own all Intellectual Property Rights in the Work Product and in all other materials connected with the Services and/or developed or produced in connection with this agreement by Data Connect, its officers, employees, subcontractors or agents. Except as expressly stated in this agreement, this agreement does not grant the Customer any rights to such Intellectual Property Rights.

19.2. Data Connect acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data. Data Connect shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer. Notwithstanding the foregoing the Customer grants to Data Connect a limited license to make use of the Customer Data that is required in order to provide the Services to the Customer.

19.3. Data Connect shall own and retain all rights, title and interest in and to the Work Product. Data Connect shall be deemed to be the author of all Work Product.

19.4. Data Connect grants to the Customer a limited (for the term of this agreement), a revocable, personal, non-transferable, non-exclusive, royalty-free, worldwide limited licence to use all of Data Connect’s Intellectual Property Rights as incorporated by Data Connect into the Work Product and provided as part of the Services solely in connection with the Customer’s (and its permitted sub-licensees’) use of the Work Product and the Services in accordance with this agreement.

19.5. The Customer grants to Data Connect a limited (for the term of this agreement), revocable, personal, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide limited licence to use, exploit, copy, reproduce, manufacture, sub-license, modify, improve, enhance and make derivative works of the Customer’s Intellectual Property Rights solely to the extent necessary to enable Data Connect to comply with its obligations under this agreement. For the avoidance of doubt, any sub-license granted pursuant to this clause shall expire upon expiry or termination of this agreement.

19.6. Data Connect shall not disclose to the Customer or use in its work any trade secrets or confidential information of a third party which Data Connect is not lawfully entitled to disclose or use in such manner. Data Connect shall not use any equipment, supplies, facilities, computer code, work product, inventions or materials of any other third party (Third-Party Materials) in any Work Product or in Data Connect’s performance under this agreement unless:

19.6.1. Data Connect has the full right and authority to do so without violating any rights of any third party;

19.6.2. Data Connect has obtained all necessary rights to enable it to perform its obligations under this agreement and grant the rights granted pursuant to this agreement, and to permit the Customer to utilise the Third-Party Materials as contemplated under this agreement, in each case at no additional cost or expense to the Customer;

19.6.3. the Customer’s use of such Third-Party Materials will not restrict or impair in any manner its use of the Work Product or subject the Customer to any obligation or liability; and

19.6.4. such Third-Party Materials are specifically identified to the Customer in writing in advance of any use and the Customer has agreed in writing to such use.

19.7. Data Connect grants to the Customer a license for the Term of this Agreement which shall be irrevocable, non-transferrable, non-exclusive, royalty-free, worldwide licence to use such Third-Party Materials as are incorporated in the Work Product solely in connection with the Customer’s (and its permitted sub-licensees’) use of the Work Product in accordance with this agreement.

19.8. Each party reserves all rights not expressly granted or transferred pursuant to this agreement.

19.9. Data Connect shall indemnify the Customer against all reasonable liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s rights (including Intellectual Property Rights) arising out of or in connection the Customer receiving Services in accordance with the terms of this agreement.

20. CONFIDENTIALITY

20.1. The provisions of this clause 20 shall not apply to any Confidential Information that:

20.1.1. is or becomes generally freely available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 20);

20.1.2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

20.1.3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;

20.1.4. was known to the receiving party before the information was disclosed to it by the disclosing party;

20.1.5. the parties agree in writing is not confidential or may be disclosed; or

20.1.6. the receiving party proves to the reasonable satisfaction of the disclosing party was developed by or for the receiving party independently of the information disclosed by the disclosing party.

20.2. Each party shall keep the other party’s Confidential Information confidential and shall not:

20.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or

20.2.2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 20.

20.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its Representatives in violation of the terms of this agreement.

20.4. The Customer:

20.4.1. acknowledges and agrees that Data Connect’s Confidential Information includes any designs, plans, software or other materials created by Data Connect in connection with the Services; and

20.4.2. agrees not to make use of any such designs, plans, software or other materials for any purpose other than receipt of the Services.

20.5. Data Connect acknowledges and agrees that the Customer Data is the Confidential Information of the Customer.

20.6. A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

20.6.1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

20.6.2. at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause 20.

20.7. 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 (including any relevant securities exchange) 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 20.7, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

20.8. A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.

20.9. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement.

20.10. The provisions of this clause 20 shall continue to apply after expiry or termination of this agreement for any reason.

20.11. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.