1.1. The following words will have the following meanings: Agreement means this Software as a Service's terms and conditions, including the Order Form. Customer Data means any data processed by the Software on behalf of the Customer. Normal Business Hours means 8.30 am to 5.30 pm local UK time, on each business day (excluding bank holidays). Order Form means Summize’s order documentation setting out the user numbers and type of software licence. Services mean the services to be provided to Customer by Summize (including the supply of the Software), specified in the Order Form. Software means Summize’s software-as-a-service platform to be licensed or otherwise made available to Customer by Summize under the Agreement, specified in the Order Form, and including any third-party software that is incorporated within that software. User means the specified employees of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3 below. 1.2. Use of the terms include, including, and any similar expressions will be read without limitation.
2.1. Summize agrees to license the Software and supply the Services to Customer, and Customer agrees to purchase such licence and Services from the Summize, on the terms of the Agreement.
2.2. (a) Subject to any earlier termination in accordance with Clause 9, the Agreement will commence on the start date specified in the Order Form (or, if no start date is specified, the date set out at the beginning of the Agreement) and continue for the term specified in the Order Form ("Initial Term"). Unless otherwise agreed in the Order Form, the Agreement will automatically renew for successive twelve (12) month periods (each a "Renewal Term") unless either party provides a minimum of 90 days written notice in advance of the Initial Term or Renewal Term, as applicable. (b) Summize will not increase the list price per user by more than 10% following the Initial Term unless the parties have otherwise agreed to a higher cap for such fee increases.
2.3. If there is any conflict or inconsistency between the provisions contained in any Customer documentation or elsewhere and the provisions in this Agreement, then the provisions in this Agreement will take precedence.
3. Software and Services
3.1. Summize grants to the relevant Users designated by the Customer, a fully paid-up, royalty-free, non-exclusive licence to access and use the Software for its ordinary business purposes.
3.2. Customer shall permit Summize or Summize’s designated auditor to audit the Services in order to establish the name and password of each User and Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per annum, at Summize’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.3. If any of the audits referred to in clause 3.2 reveal that any password has been provided to any individual who is not a User, then without prejudice to Summize’s other rights, the Customer shall promptly disable such passwords and Summize shall not issue any new passwords to any such individual; and
3.4. If any of the audits referred to in clause 3.2 reveal that the Customer has underpaid fees to Summize, then without prejudice to Summize’s other rights, Customer shall pay to Summize an amount equal to such underpayment as calculated in accordance with the then-current prices within 7 business days of the date of the relevant audit.
3.5. Summize will perform the Services: a. Using reasonable skill, care, diligence, and foresight b. In compliance with all applicable laws and regulations c. Expeditiously and in accordance with any timescales set out in the Agreement (or, if there are none, within a reasonable time)
3.6. Summize warrants that when the Software is used in accordance with the terms of the Agreement and in accordance with the Summize user guide and technical specification, that the Software will comply with that specification in all material respects (subject to any modification or update to the specification that Summize is permitted to make under Clause 3.4) and will be free from material errors and defects.
3.7. Summize may modify or update the Software (and its specification) from time to time, provided that Summize must: a. Make an updated specification for the Software, and release notes for the modification or update, available to Customer on or before the date on which the modification or update is applied to the Software b. Ensure that the modification or update does not: i. Materially degrade or adversely affect the performance of the Software or its functionality ii. Adversely affect, or require the modification or replacement of, any of the standard integrations or interfaces that have been provided by Summize and that have not been developed specifically for Customer.
3.8. Summize warrants (on an ongoing basis) that the Software does not contain any viruses, worms, trojan horses, spyware or other malicious or disabling code or software programs. Summize will take appropriate steps to prevent any such code or programs from being inserted or introduced into the Software or any computer hardware or software used by Customer to access the Software, including by the use of up-to-date, industry-accepted anti-virus software.
4. Support Software and Services
4.1. Upon becoming aware of any error, defect or fault affecting the Software or the infrastructure supporting the Software, or any failure, degradation or impairment of the availability, performance or functionality of the Software(each an Incident), then Summize will comply with its obligations in relation to investigating and resolving the Incident, but as a minimum, Summize will comply with the Summize service level agreement found at https://www.summize.com/sla (“SLA”).
4.2. Summize will provide its standard customer support services during Normal Business Hours, in accordance with the SLA, as notified to the Customer from time to time. Summize shall also perform maintenance on the Software and the infrastructure supporting the Software with the objective of minimising the frequency and duration of Incidents (Maintenance). Summize will use its reasonable endeavours to minimise the disruption to and unavailability of the Software resulting from Maintenance.
5.1. Customer will pay undisputed invoices within 30 days following the date of a valid invoice sent by Summize.
5.2. Summize’s fees for the Software and Services are set out in the Order Form and are exclusive of VAT and any other applicable sales or services tax but inclusive of all other taxes, duties and levies.
5.3. Customer will only be required to pay Summize’s expenses incurred in connection with the performance of the Services where the expenses have been reasonably incurred and have been approved by Customer in writing in advance. Such expenses will be reimbursed at cost upon Summize furnishing the Customer with the relevant receipts evidencing their incurrence.
6.1. Customer grants Summize a non-exclusive, non-transferable license to store, transmit and process the Customer Data solely to the extent necessary for Summize to provide the Services in accordance with the Agreement. Nothing in the Agreement grants Summize any rights in the Customer Data other than as expressly set out in Clause 6.1.
6.2. Summize will take appropriate physical, technical and organisational measures (aligned with good industry practice) to maintain the confidentiality, availability, security and integrity of the Software, Services and Customer Data and to protect them against unauthorised or accidental loss, damage, destruction, access, processing, erasure, use, or modification.
6.3. Both parties shall comply with relevant data protection laws in their performance of this Agreement, including the General Data Protection Regulation and Data Protection Act 2018.
6.4. Notwithstanding clauses 6.2 and 6.3 above, Customer agrees that Summize may use Customer Data in aggregated, anonymised form in order to improve the Services and/or Software by the use of automated decision processing and/or machine learning analysis.
6.5. If the parties have entered into a separate confidentiality agreement, then the terms of that confidentiality agreement will apply to any confidential information that the parties receive in connection with this Agreement. If there is no confidentiality agreement in place, then the parties will, as a minimum, keep all confidential information relating to the other party (including, in respect of Customer, the Customer Data) confidential and will not disclose any of it to any third party unless: a. Required by applicable law or regulation b. Permitted in writing by the other party c. Such information has become public through no default of the receiving party.
6.6. During the term of the Agreement, Summize will perform and maintain regular (and not less frequently than daily) secure and encrypted back-ups of all Customer Data on media from which the data can be reloaded and in a commonly used machine-readable format. Summize will make back-ups of Customer Data available to Customer upon request.
7. Intellectual Property Rights Infringement
7.1. Summize warrants (on an ongoing basis) that it has all necessary rights, licences and permissions to provide the Software and Services to Customer on the terms of the Agreement.
7.2. Subject to Clause 7.3, Summize will indemnify the Customer from and against all claims, liabilities, losses, damages, and reasonably incurred costs and expenses that are sustained or incurred by Customer in connection with any claim that the receipt and/or the use (in accordance with the terms of the Agreement) of the Software or Services by Customer infringes the rights (including the intellectual property rights) of any third party (an Infringement Claim).
7.3. Summize will not be liable under Clause 7.2 to the extent that the Infringement Claim arises as a result of the use by the Customer (or one of its third-party suppliers) of the Software or Services in combination with goods or materials that have not been supplied, made available or approved by (or on behalf of) Summize, where without such combination the claim would not have arisen.
7.4. In respect of an Infringement Claim: a. Upon becoming aware of the claim, the Customer will promptly notify Summize b. Each party will (at Summize’s sole cost and expense) provide reasonable co-operation to the other party in the defence and settlement of the claim c. Summize will, upon its written request, be given sole authority to defend or settle such claim, provided that: a. Summize keeps the Customer informed of the progress of its defence or settlement b. Summize does not compromise or settle such claim without unconditionally releasing each member of the Customer Group of all liability in respect of such claim.
8.1. Nothing will limit a party’s liability for wilful misconduct or deliberate default or any liability that cannot be excluded or limited by law.
8.2. Summize’s total liability in contract, tort (including negligence and breach of statutory duty) or otherwise in connection any breach of its obligations under clauses 6.2 and 6.3 will be limited to an amount equal to the greater of (a) £500,000; and (b) 500% of the total charges paid and payable (whether invoiced or not) to Summize under the Agreement.
8.3. Subject to Clause 8.1 and Clause 8.2: a. Neither party will be liable, whether in contract, tort (including negligence and breach of statutory duty) or otherwise, for any indirect or consequential loss b. each party's total liability in contract, tort (including negligence and breach of statutory duty) or otherwise in connection with the Agreement will be limited to an amount equal to the greater of: i. £100,000 ii. 150% of the total charges paid and payable (whether invoiced or not) to Summize under the Agreement 8.4 Summize will be liable to Customer for all acts and omissions of any sub-contractor that it uses in connection with the Agreement (including any Sub-Processor, as defined in Appendix 3) as if they were the acts and omissions of Summize itself.
9. Termination and suspension
9.1 Customer may terminate this Agreement with immediate effect by giving Summize written notice if: a. Summize is in material breach of this Agreement and: i. The breach is capable of remedy, but Summize has failed to remedy the breach within 30 days of the date of written notice requiring it to do so ii. The breach is incapable of remedy b. Summize commits five or more of the same or similar breaches of the Agreement during any rolling 12-month period, whether or not such breaches are material and/or remediedc. Summize becomes unable to pay its debts or becomes insolvent, or enters into or proposes any composition or arrangement with its creditors generally, or anything analogous to any of these events occurs to Summize.
9.2 Upon termination of the Agreement, Summize will promptly delete or return to Customer (at Customer’s option) all Customer Data in its possession or control (except to the extent, and only for the duration, that it is required to retain a copy of the Customer Data by applicable law, provided that any retained Customer Data will remain subject to the applicable terms of the Agreement including clauses 6.2, 6.3 and 6.5. If Customer terminates the Agreement under clause 9.1, then Summize will promptly refund any portion of the fees paid by Customer that relate to the period after the date of termination on a pro-rata basis.
9.3 Termination or expiry of the Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry. Any provision of the Agreement that is intended to continue in force on or after termination or expiry will remain in full force and effect.
9.4 In the event Customer delays or fails to respond for a period exceeding 21 days, Summize will be relieved from its obligation to deliver the Implementation Deliverables as set out in the Order Form. For avoidance of doubt, this will not affect the terms of the Order Form or this Agreement, and the Implementation Cost and any other fees will remain payable.
10.1 If any provision or part of a provision of the Agreement is found by any authority of competent jurisdiction to be illegal, invalid or unenforceable, it shall be deemed to have been deleted, and the legality, validity and enforceability of the remaining provisions of the Agreement will not be affected.
10.2 The Agreement contains the whole agreement between the parties and replaces all prior arrangements relating to its subject matter.
10.3 The Agreement and any disputes arising out of or in connection with it or its subject matter or formation (whether contractual or non-contractual) will be governed by the laws of England and subject to the exclusive jurisdiction of the courts of England.