Version: 14 October 2022
These Gain Theory Platform Terms (these “Platform Terms”) govern Customer’s use of the Services described in the applicable Order Form. These Platform Terms govern a number of different services provided under different Order Forms. Each Order Form that incorporates these Platform Terms will be a separate agreement. The Services are provided to Customer by (or on behalf of ) the Gain Theory entity stated in the Order Form (“Gain Theory”).
1. DEFINITIONS AND INTERPRETATION
1.1 Capitalised words not defined in the Order Form shall have the following meanings for purposes of these Platform Terms:
|Agreement||means (a) these Platform Terms, the Order Form, (b) any applicable Service Specific Terms referenced in the Order Form, and (c) any data protection terms referenced in the Order Form or applicable Services Specific Terms (if any).|
|Authorised Users||means those employees, agents and independent contractors of the Customer who are authorised to use the Services and the Documentation, as further described in section 2;|
|Beta Feature||means any Service feature that is identified by us, including via the applicable Service user interface or via other communications to Company, as “Beta”, “Alpha”, “Experimental”, “Limited Release” or “Pre-Release” or that is otherwise identified by us as being unsupported;|
|Business Day||means a day other than a Saturday, Sunday or public holiday in the relevant country from where the relevant Gain Theory entity operates as set out in the table in section 16.12 below;|
|Change of Control||means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly;|
|Confidential Information||means information that one party (or an Affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. A party’s Confidential Information shall not be deemed to include information that (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party;|
|Customer Data||means the data inputted by the Customer, Authorised Users, or Gain Theory on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;|
|Documentation||means the documentation made available to the Customer by request to the Gain Theory team to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;|
|Effective Date||means the effective date set out on the cover page of the Order Form;|
|Implementation Services||means the services provided by Gain Theory to the Customer in order to configure, customise and/or extend the functionality of the Services as set out in the Order Form, if applicable;|
|Initial Subscription Term||means the initial term of the Agreement as defined in the Order Form;|
|Intellectual Property Rights||means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world;|
|Local Time||means the time zone of the Gain Theory entity providing the Services, as set out in section 16.12 below;|
|Normal Business Hours||means 09.00 to 17.30 Local Time each Business Day;|
|Order Form||means the agreement between Gain Theory and Customer which will be formed after the Customer’s acceptance of an order form for Services;|
|Renewal Period||means the renewal period of the Agreement as defined in the Order Form;|
|Services||means the services listed in the Order Form and as further described on Gain Theory’s website and the Service Specific Terms, if applicable;|
|Subscription Fees||means the subscription fees payable by the Customer to Gain Theory for access to and use of the Services, as set out in the Order Form;|
|Subscription Term||means the Initial Subscription Term together with any subsequent Renewal Periods;|
|Support Services Policy||means Gain Theory’s policy for providing support in relation to the Services as provided to the Customer from time to time; and|
|Virus||means anything 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.|
1.2 Interpretation. In this Agreement:
1.2.1 references to “includes” or “including” or like words or expressions shall mean without limitation;
1.2.2 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification);
1.2.3 Section, schedule and paragraph headings shall not affect the interpretation of these Platform Terms. 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. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.1 License. Subject to the Customer paying their Subscription Fees in accordance with the Order Form and section 8, the restrictions set out in this section 2 and the other Platform Terms set out herein, Gain Theory hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services and the Documentation during the Subscription Term in accordance with the Agreement, solely for the Customer’s internal business operations.
2.2 Authorised Users. Only Authorised Users of Customer may access and use the Services. Customer shall be fully responsible and liable for its Authorised Users. The number of Authorised Users may at no time exceed the number of Authorised Users provided for in the Order Form(s). Customer may request Gain Theory in writing from to remove or change Authorised Users from time to time.
2.3 Credentials. Gain Theory will issue a unique username to each Authorised User. Log-in credentials may not be shared, i.e. only the relevant Authorised User to whom a username was issued may access the Services with such username. Customer shall ensure that usernames and passwords be kept strictly confidential and shall immediately report to Gain Theory the disclosure or loss of any Authorised User credentials.
2.4 Acceptable Use. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity;
2.4.3 depicts sexually explicit images;
2.4.4 promotes unlawful violence;
2.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.4.6 is otherwise illegal or causes damage or injury to any person or property;
and Gain Theory reserves the right, without liability or prejudice to its other rights, in its sole discretion, suspend the Services or any part thereof, terminate the Services or any part thereof, or to disable the Customer’s access to any material that breaches the provisions of this section 2.2 (Authorised Users).
2.5. Restrictions. The Customer shall not, 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 Platform Terms:
2.5.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation (as applicable) in any form or media or by any means; or
2.5.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Gain Theory software; or
2.5.3 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.5.4 use the Services and/or Documentation to provide services to third parties; or
2.5.5 subject to section 2.2 (Authorised Users), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
2.5.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this section 2; and
2.5.7 use the services and/or documentation for the purposes of mining, or enabling the mining, of cryptocurrencies.
2.6 Unauthorised Access. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, shall immediately notify Gain Theory of any unauthorised access.
2.7 Subsidiary Use. The rights provided under this section 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer except to the extent expressly agreed in the Order Form.
2.8 Deployment. Gain Theory hosts its platforms on third party cloud platforms of its choice subject to the providers standard terms and conditions.
2.9 Documentation. Gain Theory shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer subject to the terms of these Platform Terms.
2.10 Availability. Gain Theory shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
2.10.1 planned maintenance carried out during the maintenance window of 18.00 and 06.00 Local Time;
2.10.2 planned maintenance and minor updates carried out during a time window notified to Customer in advance; and
2.10.3 unscheduled maintenance performed outside Normal Business Hours, provided that Gain Theory has used reasonable endeavours to give the Customer at least 8 Normal Business Hours’ notice in advance.
2.11 Support. Gain Theory will, as part of the Services, provide the Customer with Gain Theory’s standard customer support services during Normal Business Hours in accordance with the applicable Service Specific Terms in effect at the time that the Services are provided. In the event that the level of support is not identified in the Order Form, Customer shall receive a “basic” level of support that is included in the Service at no additional cost. Gain Theory may amend the Support Services Policy in its sole and absolute discretion from time to time.
2.12 Beta Features. Gain Theory, in its sole discretion, may make Beta Features available to some or all customers from time to time. Gain Theory will have no liability under the Agreement (including any indemnification obligations) arising out of or related to any use of Beta Features by Customer, its Affiliates, or its or their clients. Any use of Beta Features will be solely at Customer’s own risk and may be subject to additional requirements as specified by Gain Theory. Gain Theory is not obligated to provide support for Beta Features and Gain Theory may, at its sole discretion, cease providing any or all Beta Features as part of any Services at any time.
3. CUSTOMER DATA
3.1 Data Ownership. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.2 Back-Ups. Gain Theory shall follow its archiving procedures for Customer Data as set out in its back-up policy, as such document may be amended by Gain Theory 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 shall be for Gain Theory to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Gain Theory in accordance with the archiving procedure described in its back-up policy. Gain Theory shall not be liable for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
4. DATA PROTECTION
5. THIRD PARTY PROVIDERS
6. GAIN THEORY’S OBLIGATIONS
6.1 Gain Theory shall perform the Services substantially in accordance with the Order Form and Documentation, and with reasonable skill and care. The obligation in this section 6.1shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to these Platform Terms or Gain Theory’s instructions, or by the modification or alteration of the Services by any party other than Gain Theory or Gain Theory’s duly authorised contractors or agents.
6.2 If the Services do not conform with the foregoing undertaking, Gain Theory will, at its expense, use 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 section 6.1. Notwithstanding the foregoing, Gain Theory:
6.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
6.2.2 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 the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 These Platform Terms shall not prevent Gain Theory 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 Platform Terms.
6.4 Gain Theory warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Platform Terms.
7. CUSTOMER’S OBLIGATIONS
The Customer shall:
7.1 provide Gain Theory with all necessary co-operation in relation to the Agreement; and
7.2 provide Gain Theory with all necessary access to other such information as may be required by Gain Theory with the prescribed deadlines; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
7.3 comply with all milestones and deadlines pertaining to the delivery of the Implementation Services including but not limited to:
7.3.1 facilitating account set up within 5 elapsed working days of commencement of the Implementation Project by (i) attending a welcome call or meeting; (ii) providing sales channel access credentials to facilitate the connection of the Service to Customer sales channels; (iii) providing courier credentials; and (iv) providing Office 365 login credentials to facilitate their connection to the Service;
7.3.2 providing all product data as requested by Gain Theory within 15 elapsed working days of commencement of the delivery of the Implementation Services by (i) providing Gain Theory with an export of their product inventory in the prescribed format; (ii) defining and documenting product SKU mapping in the prescribed format; (iii) identifying and documenting all product bundles; and (iv) providing all additional product data including product weights dimensions and supplier information;
7.3.3 facilitating the setup of product dispatch and shipping functionality within 17 elapsed working days of commencement of the delivery of the Implementation Services by (i) attending a shipping welcome call or meeting; (ii) providing all shipping courier account credentials; (iii) assisting Gain Theory with the specification of shipping templates; and (iv) defining desired shipping rules;
7.3.4 facilitating the setup of any additional functionality within 23 elapsed working days from the commencement of the delivery of the Implementation Services by (i) assisting with the setup of warehouse management functionality; (ii) assisting with the setup of EPOS functionality; (iii) assisting with the setup of wholesale channels; and (iv) assisting with the setup of barcode scanners; and
7.3.5 participating in user training within 60 elapsed days from the commencement of the delivery of the Implementation Services;
7.4 incur additional set up fees or other financial penalties if they fail to comply with all milestones and deadlines pertaining to the delivery of the Implementation Services and/or if they fail to attend calls, meetings or training sessions at the scheduled time;
7.5 comply with all applicable laws and regulations with respect to its activities under these Platform Terms;
7.6 carry out all other Customer responsibilities set out in these Platform 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, Gain Theory may adjust any agreed timetable, delivery schedule and /or cost as reasonably necessary;
7.7 ensure that the Authorised Users use the Services and the Documentation in accordance with these Platform Terms and shall be responsible for any Authorised User’s breach of these Platform Terms;
7.8 obtain and shall maintain all necessary licences, consents, and permissions necessary for Gain Theory, its contractors and agents to perform their obligations under these Platform Terms, including without limitation the Services;
7.9 ensure that its network and systems comply with the relevant specifications provided by Gain Theory from time to time;
7.10 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Gain Theory’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; and
7.11 comply with all other obligations set out in the relevant schedules to their Order Form.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees to Gain Theory for the Service Subscriptions in accordance with this section 8 and the applicable Order Form.
8.2 The Customer shall on the Effective Date provide to Gain Theory valid, up-to-date and complete credit card details or approved purchase order information acceptable to Gain Theory and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
8.2.1 its credit card details to Gain Theory, the Customer hereby authorises Gain Theory to bill such credit card:
184.108.40.206 on the Effective Date for the Subscription Fees payable in respect of the first month or part thereof; and
220.127.116.11 on the anniversary of the Effective Date each month thereafter up to and including the next calendar month following the end of the Initial Subscription Term or Renewal Period for the Subscription Fees payable in respect of the prior month or part thereof subject to section 15.1;
8.2.2 its approved purchase order information to Gain Theory, Gain Theory shall invoice the Customer:
18.104.22.168 on the Effective Date for the Subscription Fees payable in respect of the first month or part thereof;
22.214.171.124 on the anniversary of the Effective Date each month thereafter up to and including the next calendar month following the end of the Initial Subscription Term or Renewal Period for the Subscription Fees payable in respect of the prior month or part thereof subject to section 15.1; and
126.96.36.199 the Customer shall pay each invoice immediately by direct debit.
8.3 Notwithstanding any provision in these Platform Terms or any Service Specific Terms or any Order Form, Gain Theory’s obligations under the Agreement shall be conditional upon Customer’s fulfilment of its payment obligations to Gain Theory. If Gain Theory has not received payment within 10 days after the due date, and without prejudice to any other rights and remedies of Gain Theory:
8.3.1 Gain Theory may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Gain Theory shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Gain Theory’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 For the avoidance of doubt, if Gain Theory exercises its suspension right in accordance with section 8.3.1, the Subscription Fees shall remain payable for the full Subscription Term.
8.5 All amounts and fees stated or referred to in the Order Form and/or these Platform Terms:
8.5.1 shall be payable in pounds sterling;
8.5.2 are non-cancellable and non-refundable; and
8.5.3 are exclusive of value added tax, which shall be added to Gain Theory’s invoice(s) at the appropriate rate.
8.6 Gain Theory shall be entitled to review and increase the Subscription Fees annually on 30 days’ written notice (email to suffice) to the Customer prior to any such increase taking effect and the relevant pricing terms of the Order Form shall be deemed to have been amended accordingly. Should the Customer not accept the increase in pricing, it may terminate the Order Form within 30 days of being notified of such an increase.
9. DISPUTE RESOLUTION
9.1 The parties shall attempt to resolve any dispute arising out of or relating to this contract through negotiations between senior executives of the parties, who have authority to settle the same. Dispute resolution must be initiated by the Customer providing a written “invitation to negotiate” sent to: firstname.lastname@example.org
9.2 If the matter is not resolved by negotiation within 30 days of receipt of the written “invitation to negotiate”, either party may request that the dispute be referred to a company director of the other party.
9.3 If the matter has not been resolved within 30 days of the Customer requesting the dispute be referred to a company director, then the parties may choose to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) process.
9.4 Neither the Customer nor Gain Theory shall make public any element or nature of the dispute, disagreement, or dissatisfaction, until the dispute resolution process has been fully concluded. On conclusion of the dispute resolution process, any public disclosures made must not breach any agreement reached during such process, whether legally binding or otherwise. Should any element or nature of the dispute, disagreement or dissatisfaction be made publicly available (including, but not limited to; social media, online forums, review websites) by the Customer, without following the dispute resolution procedure outlined in section 9.1, 9.2 and 9.3, then the Order Form shall be terminated immediately, and Customer’s CCP account access immediately suspended.
9.5 Upon termination of the Order Form in accordance with section 9.4 Gain Theory shall not be held responsible for any loss of data or damage, whether direct or indirect, caused by the loss of Service.
9.6 Upon termination of the Order Form in accordance with section 9.4 all fees paid to Gain Theory by the Customer shall become non-refundable.
9.7 Upon termination of the Order Form in accordance with section 9.4 Gain Theory shall reserve the right to pursue the Customer for any damages caused, whether direct or indirectly, as a consequence of the dispute resolution process not being followed.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that Gain Theory and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, these Platform Terms does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 Gain Theory confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Platform Terms.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Platform Terms.
11.2 Subject to section 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 use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
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 Platform Terms.
11.4 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 section 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Gain Theory’s Confidential Information.
11.7 Gain Theory acknowledges that the Customer Data is the Confidential Information of the Customer and will be used only for the provision of live services and for testing and training.
11.8 No party shall make, or permit any person to make, any public announcement concerning these Platform 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.
11.9 The provisions of this section 11 shall survive termination of the Agreement.
12. DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, GAIN THEORY AND ITS AFFILIATES, PROVIDERS, SUPPLIERS AND DISTRIBUTORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WHATSOEVER, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, AVAILABILITY, COMPLETENESS, PLEASURE, STANDARDS AND NON-INFRINGEMENT WITH REGARD TO THE SERVICES. THERE ARE NO WARRANTIES NOT EXPRESSLY STATED IN THESE PLATFORM TERMS. THE SERVICES ARE PROVIDED “AS IS” WITH “ALL FAULTS” AND “AS AVAILABLE.” THERE ARE NO WARRANTIES THAT CUSTOMER’S ACCESS TO OR USE OF THE SERVICES OR ANY PART THEREOF WILL BE UNINTERRUPTED, BUG FREE OR ERROR FREE. ACCORDINGLY, CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK, INCLUDING WITHOUT LIMIT ALL RISKS ASSOCIATED WITH THE SERVICES NOT WORKING AS INTENDED, OR DAMAGING ANY HARDWARE OR OTHER SOFTWARE, OR FAILURE OF THE EXTENSION RESULTING FROM ACCIDENT, ABUSE, MISAPPLICATION, ABNORMAL OR UNINTENDED USE OR MALWARE.
13.1 Indemnity by Gain Theory. Gain Theory will indemnify Customer against:
13.1.1 all damages and costs finally awarded against Customer in relation to a claim filed by an unaffiliated third party before a court or government tribunal that the Services or the software used by Gain Theory to provide the Services infringes any Intellectual Property Right of that third party (a “Customer Claim”);
13.1.2 settlement costs in relation to that Customer Claim;
13.1.3 reasonable legal fees and disbursements necessarily incurred by Customer in relation to that Customer Claim; and
13.1.4 reasonable costs necessarily incurred by Customer in complying with section 13.3.
13.2 Indemnity by Customer. Customer will indemnify Gain Theory and its Affiliates against:
13.2.1 all damages and costs finally awarded against Gain Theory or any of its Affiliates in relation to a claim filed by an unaffiliated third party before a court or government tribunal:
188.8.131.52 that the Customer Data or other materials provided by Customer or any Affiliate of Customer to Gain Theory or otherwise provided and utilised by Customer or any Affiliate of Customer in connection with the Services (“Customer Materials”) infringes any Intellectual Property Right of that third party;
184.108.40.206 arising out of or related to the Customer’s use of the Services and/or Documentation (a “Gain Theory Claim”); and/or
220.127.116.11 that processing by Gain Theory of any personal data in accordance with this Agreement infringes the right of any data subject;
13.2.2 settlement costs in relation to that Gain Theory Claim;
13.2.3 reasonable legal fees and disbursements necessarily incurred by Gain Theory or any of its Affiliates in relation to that Gain Theory Claim; and
13.2.4 reasonable costs necessarily incurred by Gain Theory or any of its Affiliates in complying with section 13.3.
13.3 Indemnification process. Each party will:
13.3.1 notify the other of a Customer Claim or an Gain Theory Claim (each a “Third Party Claim”) promptly after becoming aware of it;
13.3.2 provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and
13.3.3 give the other sole control over the defence and settlement of that Third Party Claim subject to the indemnified party’s right to join in the defence with non-controlling counsel of its choice at its own expense and its rights under section 13.4.
13.4 Settlement. The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).
13.5 Exclusions. The indemnifying party will have no obligation or liability under this section 13 in relation to any Third Party Claim arising from:
13.5.1 the indemnified party’s breach of the Agreement;
13.5.2 (where Gain Theory is the indemnifying party) (i) Customer Data, or (ii) content or information provided to Gain Theory by Authorised Users or any other third parties;
13.5.3(where Gain Theory is the indemnifying party) the combination, operation or use by Customer or any Affiliate of Customer of any Services (a) with any product or service not provided or authorised in writing by Gain Theory, or (b) in a modified form; or
13.5.4 (where Gain Theory is the indemnifying party) acts or omissions by Customer Affiliates.
13.6 Remedies. If any Services become, or in Gain Theory’s reasonable opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Gain Theory will promptly notify Customer and, at Gain Theory’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then Gain Theory will have the right to terminate the Agreement on written notice.
13.7 Sole Remedy. Without affecting either party’s termination rights, this section 13 states the parties’ entire liability and exclusive remedy with respect to third party Intellectual Property Rights infringement allegations and Third Party Claims.
14. LIMITATION OF LIABILITY
14.1 Except as expressly and specifically provided in these Platform Terms 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. Gain Theory shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Gain Theory by the Customer in connection with the Services, or any actions taken by Gain Theory at the Customer’s direction.
14.2 Nothing in these Platform Terms excludes or limits the liability of Gain Theory:
14.2.1 for death or personal injury caused by the negligence of Gain Theory, its officers, employees, contractors or agents;
14.2.2 for fraud or fraudulent misrepresentation; or
14.2.3 any other liability which may not be limited or excluded by law.
14.3 Subject to sections 14.1 and 14.2:
14.3.1 Gain Theory shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution and/or otherwise for any losses, damages, costs, charges and/or expenses which may be suffered by the Customer which fall within any of the following categories, in each case whether direct, indirect and/or consequential: (i) special losses, damages, costs, charges and/or expenses even if Gain Theory was aware of the circumstances in which such special losses, damages, costs, charges and/or expenses could arise, (ii) loss of profits, (iii) loss of business, (iv) depletion of goodwill, (v) loss, damage and/or corruption of data or information, and/or (vi) pure economic loss; and
14.3.2 Gain Theory’s total maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in relation to and/or arising in connection with the performance or contemplated performance of the Order Form, these Platform Terms and/or any collateral contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14.4 All references to “Gain Theory” in this section 14 shall include Gain Theory, its employees, Affiliates, subcontractors and suppliers of Gain Theory, all of whom shall have the benefit of the exclusions and limitations in this section 14.
14.5 The parties agree that these Platform Terms are reasonable, that they have had the opportunity to obtain advice on these Platform Terms and that they have accepted them in their own respective commercial interests.
15. TERM AND TERMINATION
15.1 The Agreement shall, unless otherwise terminated as provided in this section 15, or superseded by an Order Form, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive Renewal Periods, unless:
15.1.1 either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case acceptance of these Platform Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
15.1.2 otherwise terminated in accordance with the provisions of these Platform Terms.
15.2 Without affecting any other right or remedy available to it, either party may withdraw their acceptance of these Platform Terms with immediate effect by giving written notice to the other party if:
15.2.1 the other party fails to pay any amount due according to these Platform Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
15.2.2 the other party commits a material breach of any other term of these Platform Terms 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;
15.2.3 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;
15.2.4 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;
15.2.5 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;
15.2.6 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;
15.2.7 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;
15.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.2.9 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 14 days;
15.2.10 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 section 15.2.3 to section 15.2.9 (inclusive);
15.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
15.3 On termination of the Agreement for any reason:
15.3.1 all rights and licences granted under these Platform Terms shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
15.3.2 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;
15.3.3 Gain Theory may destroy or otherwise dispose of any of the Customer Data in its possession unless Gain Theory receives, no later than 30 days after the effective date of the termination of these Platform Terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Gain Theory shall use reasonable commercial endeavours to deliver the back-up to the Customer within 60 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 Gain Theory in returning or disposing of Customer Data; and
15.3.4 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.
15.4 Notwithstanding any other remedy herein provided for or available to it, Gain Theory may in its sole discretion, either temporarily or permanently, suspend Customer’s access to the Services and/or Documentation, should Gain Theory have reason to suspect that Customer is in breach of these Platform Terms or the Order Form, or if payment of any fees under the Order Form remains outstanding after the due date.
16.1 Force majeure. Neither party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control.
16.2 Variation. No variation or alteration to this Agreement will be effective unless in writing and signed by both Parties and expressly identified as a variation or alteration of this Agreement.
16.3 Waiver. No delay or omission by either Party in enforcing or exercising any right, power or remedy will impair that right, power or remedy or be construed to be a waiver of it. A waiver by either Party of any of its rights, powers or remedies or of any breach will not be construed to be a waiver of any other right, remedy or power or any succeeding breach.
16.4.1 If any provision (or part of a provision) of these Platform Terms are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.4.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.5 Entire agreement.
16.5.1 Until an Order Form has been entered into by both parties, these Platform Terms constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.5.2 Each party acknowledges that in entering into these Platform Terms 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 Platform Terms.
16.5.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Platform Terms.
16.5.4 Nothing in this section shall limit or exclude any liability for fraud.
16.6.1 The Customer shall not, without the prior written consent of Gain Theory, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations resulting from their acceptance of these Platform Terms.
16.6.2 Gain Theory may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations resulting from the Customer’s acceptance of these Platform Terms.
16.7 No partnership or agency. The Customer’s acceptance of these Platform Terms is not intended to or shall not 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).
16.8 Third party rights. There are no third-party beneficiaries to these Platform Terms.
16.9.1 Any notice required to be given under these Platform Terms or Order Form 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 the Order Form, 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 the Order Form.
16.9.2 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
16.10 Governing law. These Platform Terms 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 laws of the applicable Gain Theory entity as set out in section 16.12.
16.11 Jurisdiction. Each party irrevocably agrees that the relevant courts as set out in section 16.12 shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Platform Terms or its subject matter or formation (including non-contractual disputes or claims).
16.12 Gain Theory Entity. The Services shall be deemed to be provided to Customer by (or on behalf of) the Gain Theory entity stated in the Order Form:
|Gain Theory Entity:||Country||Local Time||Governing Law:||Courts:|
|Gain Theory Limited||UK||GMT/BST||English||London|
|Gain Theory LLC||USA||EDT/EST||New York State & USA Federal||New York|
|J. Walter Thompson (Singapore) Pte Ltd||SG||SST||Singapore||Singapore|
|Comwerks Pte Ltd||SG||SST||Singapore||Singapore|