Monthly Uptime % being calculated by;

= Total available hours in the month / (Total hours in a month – excluded hours in that month (as mentioned below))

• • 5.2.6 Exclusions to the monthly uptime percentage:

(i) in which Restrata are performing scheduled maintenance;

(ii) that result from termination as described in the Agreement;

(iii) that result from suspension due to overdue payments;

(iv) caused by factors outside of Restrata’s reasonable control, including any Force Majeure Event or internet access or related problems;

(v) that result from any actions or inactions of the Client or any third party on behalf of the Client;

(vi) that result from Client’s equipment, software or other technology and/or third-party equipment, software or other technology, contracted by the Client;

(vii) caused by Client’s use of the Software in a manner inconsistent with the documentation or Restrata guidance;

(viii) caused by the Client’s use of the Software after Restrata advised the Client to modify its use of the Software;

(ix) attributable to acts by persons gaining unauthorized access to or use of the Software due to Client’s failure to maintain and control security and access to the Software;

(x) attributable to the acts or omissions of the Client or its employees, agents, contractors, or vendors, or anyone gaining access to the Software by means of Client’s credentials or equipment;

(xi) that result from the deployment or execution of applications in the Restrata Platform which, due to excessively complex or erroneous programming of said applications, will not consistently answer user requests successfully, with a predictable term, without errors or any sort, and without behaviours susceptible of consuming excessive resources from the underlying hardware or software, or causing contention in access to said resources.

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6. CLIENT DATA AND DATA PROTECTION

6.1 The Client shall own all rights, titles and interests in all of the Client Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

6.2 In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Restrata shall be for Restrata to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Restrata. Restrata shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Restrata to perform services related to Client Data maintenance and back-up for which it shall remain liable).

6.3 Restrata shall, in providing the Services, comply with its privacy policy (Restrata Privacy Policy) relating to the privacy and security of the Client Data which shall be provided to the Client via the Restrata Platform, as such document may be amended from time to time by Restrata in its sole discretion.

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

6.5 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Restrata is the Processor.

6.6 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Restrata for the duration and purposes of these Terms and Conditions.

6.7 The Provider shall, in relation to any Personal Data processed in connection with the performance by Restrata of its obligations under these Terms and Conditions:

• • 6.7.1 process that Personal Data only on the documented written instructions of the Client unless Restrata is required by law to otherwise process that Personal Data.
  • 6.7.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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);
  • 6.7.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  • 6.7.4 not transfer any Personal Data outside of the EEA unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
    • 6.7.4.1 the Client or Restrata has provided appropriate safeguards in relation to the transfer;
    • 6.7.4.2 the data subject has enforceable rights and effective legal remedies;
    • 6.7.4.3 Restrata complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    • 6.7.4.4 Restrata complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
  • 6.7.5 assist the Client, at the Client's cost, 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;
  • 6.7.6 notify the Client without undue delay on becoming aware of a Personal Data Breach;
  • 6.7.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by law to store the Personal Data; and
  • 6.7.8 maintain complete and accurate records and information to demonstrate its compliance with this clause.

6.8 The Client consents to Restrata appointing any third-party processor of Personal Data provided that Restrata enters into a written agreement incorporating terms which are substantially similar to those set out in this clause 6. As between the Client and Restrata, Restrata shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.

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7. THIRD-PARTY PROVIDERS  

7.1 The Client acknowledges that the Services may enable or assist it to access the website content of and correspond with third parties via third-party websites, and that it does so solely at its own risk. Restrata makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third-party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third-party, and not Restrata. Restrata recommends that the Client refers to the third-party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Restrata does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

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8. RESTRATA’S OBLIGATIONS 

8.1 Restrata undertakes that the Services will be performed with reasonable skill and care.

8.2 Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Restrata’s instructions; or modification or alteration of the Services by any party other than Restrata or Restrata’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Restrata will, at its expense, use reasonable commercial endeavours to (a) correct any such non-conformance promptly, or (b) provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 8.1. Notwithstanding the foregoing, Restrata:

• • 8.2.1does not warrant that the Client’s use of the Services will be uninterrupted or error-free;
  • 8.2.2 does not warrant that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements;
  • 8.2.3 is not responsible or liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
  • 8.2.4 is not responsible or liable for any non-conformance of the Services which is caused by failure of the Client, or a material change to, the Client’s systems or a third-party’s systems or platform to which the Client has given Restrata access for the purpose of the Services.

8.3 Restrata warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and Conditions.

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9. CLIENT’S OBLIGATIONS  

9.1 The Client shall:

• • 9.1.1 in a timely and efficient manner, provide Restrata with:
    • 9.1.1.1 all necessary co-operation in relation to the Services; and
    • 9.1.1.2 all necessary access to such information or premises as may be required by Restrata.
  • 9.1.2 comply with all applicable laws (including anti-corruption and anti-bribery laws) and regulations;
  • 9.1.3 ensure that the Authorised Users use the Services in accordance with these Terms and Conditions;
  • 9.1.4 obtain and shall maintain all necessary licences, consents required (including, but not limited to, the consent of the Authorised Users) in connection with these Terms and Conditions;
  • 9.1.5 ensure that its network and systems comply with the relevant specifications provided by Restrata from time to time;
  • 9.1.6 be solely responsible for ensuring that the Services are fit for the Client’s purpose and meet the needs of the Client; and
  • 9.1.7 be, to the extent permitted by law and except as otherwise expressly provided in these Terms and Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Restrata’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

9.2 If Restrata's performance of its obligations under these Terms and Conditions is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Restrata shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

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10. CHARGES AND PAYMENT

10.1 The Client shall pay the Fees within 30 days of receipt of invoice.

10.2 If Restrata has not received payment on the due date, and without prejudice to any other rights and remedies of Restrata:

• • 10.2.1 Restrata may, without liability to the Client, disable the Client’s access to all or part of the Services and Restrata shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  • 10.2.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10.3 All amounts and fees stated or referred to in these Terms and Conditions:

• • 10.3.1 non-cancellable and non-refundable;
  • 10.3.2 are exclusive of value added tax, which shall be added to any Restrata invoice at the appropriate rate.
  • 10.3.3 are exclusive of any withholding taxes or any additional local taxes or levies that the client is required by law to deduct from invoices, if such taxes or levies exist the price will be automatically grossed up so that the funds transferred to Restrata exactly match the Fees section

10.4 Restrata shall be entitled to increase the Fees on an annual basis upon giving the Client at least 30 days’ written notice.

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11. PROPRIETARY RIGHTS  

11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) are owned by Restrata.

11.2 Restrata confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms and Conditions.

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12. CONFIDENTIALITY

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms and Conditions. A party’s Confidential Information shall be deemed not to include information that:

• • 12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
  • 12.1.2 was in the other party’s lawful possession before the disclosure;
  • 12.1.3 is lawfully disclosed to the receiving party by a third-party without restriction on disclosure; or
  • 12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.

12.2 Subject to Clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purpose other than the implementation of these Terms and Conditions.

12.3 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 officers, employees or agents in violation of the terms of these Terms and Conditions.

12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 12.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third-party.

12.6 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Restrata’s Confidential Information.

12.7 Restrata acknowledges that the Client Data is the Confidential Information of the Client.

12.8 No party shall make, or permit any person to make, any public announcement concerning these Terms and Conditions 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, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.9 The above provisions of this Clause 12 shall survive termination of these Terms and Conditions, however arising.

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13. INDEMNITY

13.1 The Client shall defend, indemnify and hold harmless Restrata against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services, provided that:

• • • 13.1.1 the Client is given prompt notice of any such claim;
    • 13.1.2 Restrata provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
    • 13.1.3 the Client is given sole authority to defend or settle the claim.

13.2 Restrata shall defend the Client, its officers, directors and employees against any claim that the Services infringes any patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

• • 13.2.1 Restrata is given prompt notice of any such claim;
  • 13.2.2 the Client provides reasonable co-operation to Restrata in the defence and settlement of such claim, at Restrata’s expense; and
  • 13.2.3 Restrata is given sole authority to defend or settle the claim.

13.3 In the defence or settlement of any claim, Restrata may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms and Conditions on two (2) Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

13.4 In no event shall Restrata, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

• • 13.4.1 a modification of the Services by anyone other than Restrata; or
  • 13.4.2 the Client’s use of the Services in a manner contrary to the instructions given to the Client by Restrata; o
  • 13.4.3 the Client’s use of the Services after notice of the alleged or actual infringement from Restrata or any appropriate authority.

13.5 The foregoing states the Client’s sole and exclusive rights and remedies, and Restrata’s (including Restrata’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right, right of confidentiality or other intellectual property right.

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14. LIMITATION OF LIABILITY

14.1 Except as expressly and specifically provided in these Terms and Conditions:

• • 14.1.1 the Client assumes sole responsibility for the configuration of the Services. Restrata shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Restrata by the Client in connection with the Services, or any actions taken by Restrata at the Client’s direction;
  • 14.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms and Conditions;
  • 14.1.3 the Services are provided to the Client on an “as is” basis; and
  • 14.1.4 the Client assumes sole responsibility for the Authorised Users, and Restrata shall have no liability in respect thereof.

14.2 Nothing in these Terms and Conditions excludes the liability of a party:

• • 14.2.1 for death or personal injury caused by that party’s negligence; or
  • 14.2.2 for fraud or fraudulent misrepresentation.

14.3 Subject to Clauses 14.1 and 14.2:

• • 14.3.1 Restrata shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any Consequential Loss however arising under these Terms and Conditions; and
  • 14.3.2 Restrata’s total aggregate liability in contract (including in respect of the indemnity at Clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms and Conditions shall be limited to the Fees paid by the Client to Restrata pursuant to these Terms and Conditions during the 12 months immediately preceding the date on which the claim arose.

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15. TERM AND TERMINATION  

15.1 This Terms and Conditions shall commence on the Start Date and will continue until the end of the Initial Subscription Term and any subsequent Renewal Term, unless either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Term, in which case these Terms and Conditions shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Term (as applicable) or otherwise terminated in accordance with the provisions of these Terms and Conditions.

15.2 Without affecting any other right or remedy available to it, either party may terminate these Terms and Conditions with immediate effect by giving written notice to the other party if:

• • 15.2.1 the other party commits a material breach (including non-payment of any fees due by the Client) of any term of these Terms and Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
  • 15.2.2 the other party takes any step or action in connection with that party entering administration, provisional liquidation or any composition or arrangement with creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any assets or ceasing to carry on business;
  • 15.2.3 the other party suspends, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of their business; or
  • 15.2.4 the other party’s financial position deteriorates to such an extent that in a reasonable person’s opinion the party is incapable of adequately fulfilling their obligations under these Terms and Conditions.
  • 15.3 On termination of these Terms and Conditions for any reason:
    • 15.3.1 all licences granted under these Terms and Conditions shall immediately terminate and the Client shall immediately cease all use of the Services;
    • 15.3.2 Restrata may destroy or otherwise dispose of any of the Client Data in its possession in accordance with these Terms and Conditions, unless Restrata receives, no later than ten days after the effective date of the termination of these Terms and Conditions, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Restrata shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at, and resulting from, termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Restrata in returning or disposing of Client Data; and
    • 15.3.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms and Conditions which existed at or before the date of termination shall not be affected or prejudiced.

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16. FORCE MAJEURE  

Restrata shall have no liability to the Client under these Terms and Conditions if it is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Restrata or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

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17. VARIATION 

No variation of these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

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18. WAIVER  

No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

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19. RIGHTS AND REMEDIES  

Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

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20. SEVERANCE  

20.1 If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions.

20.2 If any provision or part-provision of these Terms and Conditions is deemed deleted under Clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

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21. ENTIRE AGREEMENT  

21.1 This Terms and Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2 Each party acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions.

21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions. Nothing in this clause shall limit or exclude any liability for fraud.

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22. ASSIGNMENT

22.1 The Client shall not, without the prior written consent of Restrata, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.

22.2 Restrata may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.

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23. THIRD-PARTY RIGHTS  

This Terms and Conditions does not confer any rights on any person or party (other than the parties to these Terms and Conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third parties) Act 1999.

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24. SURVIVAL

Any provision of these Terms and Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms and Conditions shall remain in full force and effect.

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25. GOVERNING LAW AND JURISDICTION

This Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance English law and under the exclusive jurisdiction of the English courts.

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