Terms & Conditions
These Terms govern your use of eFD, and set out the terms and conditions under which Seker Tech will provide, and you, the Customer, will use and pay for eFD. THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 13 (LIMITATION OF LIABILITY) UNDER THESE TERMS.
1.1. The definitions and rules of interpretation in this clause apply in these Terms.
Applicable Laws: has the meaning given in Clause 5.7.1.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use eFD, the Services and the Documentation, as further described in Clause 2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.
Contract: the contract between the parties including these Terms and the Documentation.
Contract Date: the date of the Contract, being the date that the Contract comes into existence between the parties when the Customer is given access to the Services via the Services Portal, in accordance with these Terms..
Contract Year: a year from the Contract Date, or the relevant anniversary of the Contract Date, during the Subscription Term.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer: you, the customer of Seker Tech, purchasing eFD, as stated in the registration process on the Services Portal.
Customer Data: the data inputted by the Customer or Authorised Users, for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Documentation: the documentation made available to the Customer by Seker Tech online via eFD, which sets out a description of the Services and the user instructions for the Services.
eFD: the cloud based online funeral directing software platform, provided by Seker Tech through the Services Portal.
Group Company: in relation to a company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company or that company.
Initial Subscription Term: the initial term of these Terms, being one (1) year, or such other period as set out on the Services Portal.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in Clause 14.1.
Seker Tech: Seker Tech Limited, with company number 12017421, a company registered in England and Wales at Rampion House, Marchants Way, Burgess Hill, West Sussex, RH15 8QY, United Kingdom.
Services: the subscription services provided by Seker Tech to the Customer under these Terms for eFD, as more particularly described in the Documentation.
Services Portal: means the website url where the Services are accessible, as notified to the Customer by Seker Tech from time to time.
Subscription Fees: the fees payable by the Customer to Seker Tech for its use of eFD and the provision of the Services, as set out in the Documentation and/or the Services Portal.
Subscription Term: has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy: Seker Tech’s policy for providing support in relation to the Services as made available on the Services Portal or such other website address as may be notified to the Customer from time to time.
Terms: these terms and conditions, of Seker Tech.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
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 re-arranging, 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.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2. References to clauses are to the clauses of these Terms and clause headings shall not affect the interpretation of these Terms.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Terms under that statute or statutory provision.
1.9. A reference to writing or written e-mail.
2.1. Upon the Customer applying to Seker Tech for use of eFD through the Services Portal, Seker Tech shall review the initial details placed in the Services Portal by the Customer and complete an on-boarding fact find with the Customer, to ascertain required use of the Services by the Customer. The Customer shall only be given access to the Services once the parties have agreed the scope of use of the Services and applicable Subscription Fees, following which Seker Tech shall provide the Customer with login details to the Services Portal and initial training as agreed with the Customer, whereby the Customer shall have access to the Services for use in accordance with these Terms.
2.2. The Customer acknowledges that the Services are provided as an off-the-shelf service and that Seker Tech shall not undertake any customisation of eFD and/or the Services, unless otherwise specifically agreed in writing between the parties. The Customer may configure eFD within the Services Portal, for its use, in accordance with the description provided in the Documentation and/or the Services Portal.
2.3. The Customer shall provide any information reasonably required by Seker Tech during the set up process, for Seker Tech to comply with its obligations under the Contract, including (but not limited to) information on the Customer’s business, such as number of funerals sold in the previous year.
3. AUTHORISED USERS
3.1. Subject to the Customer paying the Subscription Fees in accordance with these Terms and the Customer’s compliance with the restrictions set out in these Terms, Seker Tech hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
3.2.1. it will not allow or suffer any Authorised User’s profile to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
3.2.2. each Authorised User shall keep a secure password for his use of eFD and Documentation (if applicable), that such password shall be changed no less frequently than every six (6) months and that each Authorised User shall keep his password confidential;
3.2.3. it shall maintain a written, up to date list of current Authorised Users and provide such list to Seker Tech within a reasonable time of Seker Tech’s request at any time;
3.2.4. it shall permit Seker Tech or Seker Tech’s designated auditor to audit the Services in order to audit compliance with these Terms. Each such audit may be conducted no more than once per quarter, at Seker Tech’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;
3.2.5. if any audit reveals that any password has been provided to any individual who is not an Authorised User or any breach of these Terms, then without prejudice to Seker Tech’s other rights, the Customer shall promptly disable such passwords and Seker Tech shall not issue any new passwords to any such individual; and
3.2.6. if any audit reveals that the Customer has underpaid Subscription Fees to Seker Tech, then without prejudice to Seker Tech’s other rights, the Customer shall pay to Seker Tech an amount equal to such underpayment as calculated in accordance with the prices set out in the Documentation within ten (10) Business Days of the date of the relevant audit.
3.3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2. facilitates illegal activity;
3.3.3. depicts sexually explicit images;
3.3.4. promotes unlawful violence;
3.3.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6. is otherwise illegal or causes damage or injury to any person or property;
and Seker Tech reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.4. The Customer shall not:
3.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
184.108.40.206. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of eFD and/or Documentation (as applicable) in any form or media or by any means; or
220.127.116.11. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of eFD; or
3.4.2. access all or any part of eFD, the Services and Documentation in order to build a product or service which competes with eFD, the Services and/or the Documentation; or
3.4.3. use eFD, the Services and/or Documentation to provide services to third parties; or
3.4.4. subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make eFD, the Services and/or Documentation available to any third party except the Authorised Users, or
3.4.5. attempt to obtain, or assist third parties in obtaining, access to eFD, the Services and/or Documentation, other than as provided under this Clause 2; or
3.4.6. introduce or permit the introduction of, any Virus or Vulnerability into eFD or Seker Tech’s network and information systems.
3.5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, eFD, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Seker Tech.
3.6. The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.7. The Customer may, from time to time during any Subscription Term, add additional Authorised Users and Seker Tech shall grant access to eFD, the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Terms.
4.2. Seker Tech shall use commercially reasonable endeavours to make the Services available twenty four (24) hours a day, seven days a week, except for:
4.2.1. planned maintenance carried out during any notified the maintenance window; and
4.2.2. unscheduled maintenance performed outside Normal Business Hours, provided that Seker Tech has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance.
4.3. Seker Tech will, as part of the Services, and at no additional cost to the Customer, provide the Customer with Seker Tech’s standard customer support services during Normal Business Hours in accordance with Seker Tech’s Support Services Policy in effect at the time that the Services are provided. Seker Tech may amend the Support Services Policy in its sole and absolute discretion from time to time.
5.1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2. Seker Tech shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available on the Services Portal as may be notified to the Customer from time to time, as such document may be amended by Seker Tech in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Seker Tech shall be for Seker Tech to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Seker Tech in accordance with the archiving procedure described in its Back-Up Policy. Seker Tech shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Seker Tech to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under Clause 5.9).
5.3. Seker Tech shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available on eFD, as such document may be amended from time to time by Seker Tech in its sole discretion.
5.4. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.5.1. if Seker Tech processes any personal data on the Customer’s behalf when performing its obligations under these Terms, the Customer is the controller and Seker Tech is the processor for the purposes of the Data Protection Legislation.
5.5.2. the following table sets out the scope, nature and purpose of processing by Seker Tech, the duration of the processing and the types of personal data and categories of data subject:
Scope of processing:
To provide the Customer with eFD and the Services
Nature of processing:
To provide the Customer with eFD and the Services
Purpose of processing:
In order to provide the Customer with eFD and the Services, and for Seker Tech to fulfil its obligations set out in these Terms.
Duration of processing:
The Term and so long is necessary thereafter for legal and audit purposes.
Types of personal data:
Names, addresses, identity data, contact information, payment details, transactional data
Categories of data subject:
Customers, customers family members, friends and third parties who provide information or are involved in the funeral provided by the Customer and staff of the Customer
5.5.3. the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Seker Tech’s other obligations under these Terms.
5.6. Without prejudice to the generality of Clause 5.5 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Seker Tech for the duration and purposes of these Terms so that Seker Tech may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer’s behalf.
5.7. Without prejudice to the generality of Clause 5.5, Seker Tech shall, in relation to any personal data processed in connection with the performance by Seker Tech of its obligations under these Terms:
5.7.1. process that personal data only on the documented written instructions of the Customer unless Seker Tech is required by the laws of any member of the European Union or by the laws of the European Union applicable to Seker Tech and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Seker Tech is relying on Applicable Laws as the basis for processing personal data, Seker Tech shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Seker Tech from so notifying the Customer;
5.7.2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
18.104.22.168. the Customer or Seker Tech has provided appropriate safeguards in relation to the transfer;
22.214.171.124. the data subject has enforceable rights and effective legal remedies;
126.96.36.199. Seker Tech complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
188.8.131.52. Seker Tech complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
5.7.3. assist the Customer, at the Customer’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;
5.7.4. notify the Customer without undue delay on becoming aware of a personal data breach;
5.7.5. 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 for these purposes the term “delete” shall mean to put such data beyond use); and
5.7.6. maintain complete and accurate records and information to demonstrate its compliance with this Clause 5 and immediately inform the Company if, in the opinion of Seker Tech, an instruction infringes the Data Protection Legislation.
5.8. Each party shall 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).
5.9. The Customer consents to Seker Tech appointing Microsoft Azure, Red River Limited and Frontline Communications Group Limited as a third-party processor of personal data under these Terms. Seker Tech confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case which Seker Tech undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Seker Tech, Seker Tech shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 5.
5.10. Either party may, at any time on not less than thirty (30) days’ notice, revise this Clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).
7.1. Seker Tech undertakes that, subject to the Customer complying with its obligations under these Terms, the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Seker Tech’s instructions, or modification or alteration of the Services by any party other than Seker Tech or Seker Tech’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Seker Tech will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance 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 set out in Clause 7.1.
7.3. Seker Tech:
7.3.1. does not warrant that:
184.108.40.206. the Customer’s use of the Services will be uninterrupted or error-free; or
220.127.116.11. that eFD, the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
7.3.2. is not responsible 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 Customer acknowledges that eFD, the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. These Terms shall not prevent Seker Tech from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
7.5. Seker Tech warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
8. CUSTOMER’S OBLIGATIONS
The Customer shall:
8.1.1. provide Seker Tech with:
18.104.22.168. all necessary co-operation in relation to these Terms; and
22.214.171.124. all necessary access to such information as may be required by Seker Tech;
8.1.3. carry out all other Customer responsibilities set out in these Terms 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, Seker Tech may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User’s breach of these Terms;
8.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Seker Tech, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
8.1.7. be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Seker Tech’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.
9.1. The Customer shall pay the Subscription Fees to Seker Tech for the use of eFD and receipt of the Services, in accordance with this Clause 9, by way of a one off payment on the Contract Date for any annual period, or as a monthly direct debit, as required by Seker Tech and as agreed between the parties during the onboarding process in Clause 2.
9.2. The Customer shall supply valid, up-to-date and complete contact and billing details as required by Seker Tech, and if the Customer:
9.2.1. is to make a one off payment, as is estimated to supply less than five hundred (500) funerals in the next Contract Year: on the Contract Date provide to Seker Tech valid, up-to-date and complete credit card details, whereby the Customer hereby authorises Seker Tech to bill such credit or debit card:
126.96.36.199. on the Contract Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
188.8.131.52. subject to Clause 14.1, on each anniversary of the Contract Date for the Subscription Fees payable in respect of the next Renewal Period; or
9.2.2. is to pay monthly by direct debit, as is estimated to supply five hundred (500) funerals or more in the next Contract Year: on the Contract Date, and on the monthly anniversary of such date thereafter for the Subscription Term, pay Seker Tech via direct debit into Seker Tech’s bank account (as informed to the Customer from time to time).
9.3. If Seker Tech has not received any payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of Seker Tech:
9.3.1. Seker Tech may, without liability to the Customer, disable the Customer and/or its Authorised User’s password, account and access to all or part of eFD and the Services, and Seker Tech shall be under no obligation to provide any or all of the Services while the amount(s) concerned remain unpaid; and
9.3.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to four per cent (4%) over the then current base lending rate of Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4. All amounts and fees stated or referred to in these Terms:
9.4.1. shall be payable in pounds sterling;
9.4.2. are, subject to Clause 13.3.1, non-cancellable and non-refundable;
9.5. If, at any time whilst using the Services, the Customer exceeds the amount of storage space specified in the Documentation, Seker Tech shall charge the Customer, and the Customer shall pay, Seker Tech’s then current excess data storage fees, as updated to the Customer on demand, from time to time.
9.6. The parties acknowledge that the Subscription Fees payable by the Customer on and/or after the Contract Date, are calculated in accordance with the information provided by the Customer (including the number of funerals provided by the Customer in the previous year, any excess storage or support required by the Customer) and Seker Tech shall review such information and the Customer’s use of eFD on an annual basis, at least thirty (30) days’ prior to the start of any Renewal Period during the Subscription Term (Review).
9.7. Seker Tech shall be entitled to vary the Subscription Fees payable in respect of any Review at the start of each Renewal Period, upon thirty (30) days’ prior notice to the Customer, and any Documentation or agreed Subscription Fee shall be deemed to have been amended accordingly.
10. INTELELCTUAL PROPERTY RIGHTS
10.1. The Customer acknowledges and agrees that Seker Tech and/or its licensors own all intellectual property rights in eFD, the Services and the Documentation. Except as expressly stated herein, these Terms does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of eFD, the Services or the Documentation.
10.2. Seker Tech confirms that it has all the rights in relation to eFD, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party’s lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2. Subject to Clause 11.4, 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 Group Company, or use the other’s Confidential Information for any purpose other than the implementation of these Terms.
11.3. 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 employees or agents in violation of the terms of these Terms.
11.4.1. 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;
11.4.2. to its professional advisors, to the extent required to allow such party to fulfil its obligations under the Contract,
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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.6. Seker Tech acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7. No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other parties (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.
12.1. The Customer shall defend, indemnify and hold harmless Seker Tech and its employees, directors, agents and sub-contractors (as relevant), together with Seker Holdings Limited, 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 Customer’s use of the Services and/or Documentation, provided that:
12.1.1. the Customer is given prompt notice of any such claim;
12.1.2. Seker Tech provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
12.2. Seker Tech shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with these Terms infringes any United Kingdom patent effective as of the Contract Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1. Seker Tech is given prompt notice of any such claim;
12.2.2. the Customer provides reasonable co-operation to Seker Tech in the defence and settlement of such claim, at Seker Tech’s expense; and
12.2.3. Seker Tech is given sole authority to defend or settle the claim.
12.3. In the defence or settlement of any claim, Seker Tech may procure the right for the Customer 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 the Contract on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4. In no event shall Seker Tech, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1. a modification of the Services or Documentation by anyone other than Seker Tech; or
12.4.2. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Seker Tech; or
12.4.3. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Seker Tech or any appropriate authority.
12.5. The foregoing and Clause 13.3.2 state the Customer’s sole and exclusive rights and remedies, and Seker Tech’s (including Seker Tech’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13.1.1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Seker Tech shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Seker Tech by the Customer in connection with the Services, or any actions taken by Seker Tech at the Customer’s direction;
13.1.2. 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 the Contract; and
13.2.1. for death or personal injury caused by Seker Tech’s negligence; or
13.2.2. for fraud or fraudulent misrepresentation.
13.3.1. Seker Tech shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
13.3.2. Seker Tech’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 the Contract shall be limited to the total Subscription Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.
14.1. The Contract shall, unless otherwise terminated as provided in this Clause 14, commence on the Contract Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
14.1.1. either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
14.1.2. otherwise terminated in accordance with the provisions of these Terms;
14.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
14.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
14.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
14.2.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
14.2.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
14.2.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2.3 to 14.2.9 (inclusive); or
14.3. On termination of the Contract for any reason:
14.3.1. all licences granted under the Contract shall immediately terminate and the Customer and its Authorised Users shall immediately cease all use of eFD, the Services and/or the Documentation;
14.3.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.3.3. Seker Tech may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with Clause 5.7.5 unless Seker Tech receives, no later than ten (10) days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Seker Tech shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer 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 Customer shall pay all reasonable expenses incurred by Seker Tech in returning or disposing of Customer Data; and
14.3.4. 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 the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. FORCE MAJEURE
Seker Tech shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, 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 Seker Tech 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 Customer is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
18. RIGHTS AND REMEDIES
Except as expressly provided the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1. If any provision or part-provision of the Contract 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 the Contract.
19.2. If any provision or part-provision of the Contract is deemed deleted under Clause 19.1 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.
20. ENTIRE AGREEMENT
20.1. The Contract 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.
20.2. Each party acknowledges that in entering into the Contract 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 the Contract.
20.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
20.4. Nothing in this clause shall limit or exclude any liability for fraud.
21.1. The Customer shall not, without the prior written consent of Seker Tech, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21.2. Seker Tech 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 the Contract.
22. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. THIRD PARTY RIGHTS
The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1. Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Terms, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in these Terms.
24.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
25. GOVERNING LAW
The Contract 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 with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
SEKER TECH LIMITED