Terms and Conditions

1. INTRODUCTION
   1. Contained Technologies has developed a Platform (as defined below) for the purpose of enabling various Collaborators to share data relating to the supply chain activity and other information relating to the commercial supply of products and services, including customs declarations, entry summary submissions, Goods Movement References and available telemetry information.
   2. The Participant wishes to become a Collaborator and use Contained Technologies’ Platform for the purpose of sharing data with other Collaborators, either on a paid-for basis as an Originating Participant or free of charge (following referral by an Originating Participant) as a Referred Participant. Such data sharing with other Collaborators will be subject to a Data Sharing Agreement between the Participant and the relevant Collaborator.
   3. Contained Technologies has agreed to make the Platform available and the Participant has agreed to access the Platform subject to the terms and conditions of this Agreement.
   4. For Referred Participants, these Terms and Conditions form the entire Agreement between the relevant Referred Participant and Contained Technologies and is entered into when the Referred Participant completes their registration to use the Platform. For Paid Participants, these Terms and Conditions are incorporated by reference into the Registration Form agreed between the parties.
2. INTERPRETATION
   1. The definitions and rules of interpretation in this clause apply in this Agreement.
      • “Agreement”
        means:
        (a) in the case of an Originating Participant, the Registration Form which incorporates these Terms and Conditions; or
        (b) in the case of a Referred Participant, these Terms and Conditions.
      • “Applicable Laws”
        means any and all applicable rules of law, statutes, statutory instruments, directives, regulations, orders and other instruments having the force of law and any applicable codes of conduct, guidance, directions and/or determinations with which the Participant or Contained Technologies (as applicable) is bound to comply.
      • “Authorised Users”
        means those employees, agents and independent contractors of the Participant who are authorised by the Participant to use the Platform and the Documentation, as further described in clause 3.4.4. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
      • “Collaborator”
        means the Participant and any third party which enters into a collaboration Agreement (on substantially similar terms to this Agreement) with Contained Technologies.
      • “Confidential Information”
        means information that is designated as ‘confidential’ or which by its nature is clearly confidential and includes any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, customers, suppliers or 120097352.Version \ JB30 3 methods of one party and disclosed to or otherwise obtained by the other party in connection with this Agreement.
      • “Contained Technologies”
        means Contained Technologies UK Limited, a company incorporated and registered in England and Wales with company number 10978406 whose registered office is at 49 Greek Street, London W1D 4EG.
      • “Participant”
        means the Originating Participant or the Referred Participant as applicable.
      • “Participant Data”
        means the data inputted by the Participant or an Authorised User on the Participant’s behalf for the purpose of sharing or receiving data with the using the Platform.
      • “Data Protection Legislation”
        means all applicable data protection and privacy legislation in force from time to time and which is applicable to a party including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended 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).
      • “Data Sharing Agreement”
        means a data-sharing agreement agreed upon amongst Collaborators.
      • “Documentation”
        means the document made available to the Participant by Contained Technologies online via https://bluering.contained.io/registration/ or such other web address notified by Contained Technologies to the Participant from time to time which sets out a description of the Platform and the user instructions for the Platform.
      • “Effective Date”
        means the date of the Participant’s Registration, which will be:
        (a) in the case of an Originating Participant, the date set out on the Registration Form; or
        (b) in the case of a Referred Participant, the date on which the Referred Participant completed their Registration for the Platform.
      • “Fees”
        means the subscription fees payable by the Participant to Contained Technologies for the User Subscriptions, as set out in the Registration Form.
      • “ICO”
        means the UK Information Commissioner’s Office, or any successor body which replaces it.
      • “Normal Business Hours”
        means 8.00 am to 6.00 pm local UK time, each Business Day.
      • “Originating Participant”
        means the party named in the Registration Form (as applicable).
      • “Platform”
        means the online software applications provided by Contained Technologies to enable data sharing amongst the Collaborators, as further described in the Documentation.
      • “Referred Participant”
        means the party named during the online registration form following a referral by an Originating Participant.
      • “Registration Form”
        means a form detailing the relevant Participant’s entitlement to use the Platform entered into between the parties.
      • “Restricted Country”
        means a country, territory or jurisdiction outside of the UK which the Secretary of State has not deemed to provide adequate protection in accordance with Art 45 of the UK GDPR or contained in Schedule 21, Part 3, Paragraph 5 of the Data Protection Act 2018.
      • “Security Requirements”
        means the requirements regarding the security of Personal Data, as set out in the Data Protection Legislation including, in particular, the measures set out in Article 32(1) of the UK GDPR (taking due account of the matters described in Article 32(2) of the UK GDPR).
      • “Submission”
        means [sharing Participant Data with or receiving Participant Data from a Collaborator.
      • “Support Services Policy”
        means Contained Technologies’ policy for providing support in relation to the Platform as made available at https://bluering.contained.io/support or such other website address as may be notified to the Participant from time to time.
      • “Term”
        means the duration of this Agreement in accordance with clause 11.1.
      • “UK GDPR”
        has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
      • “User Subscriptions”
        means the user subscriptions purchased by the Participant pursuant to clause 3 which entitle Authorised Users to access and use the Platform and the Documentation in accordance with this Agreement.
      • “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
   2. The terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures” have the meanings given to 120097352. Version \ JB30 5 Those terms in the Data Protection Legislation (and “process” and “processed” shall be construed accordingly).
   3. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
   4. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
   5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
   6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
   7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
   8. A reference to a statute or statutory provision is a reference to it as it is in force as of the date of this Agreement.
   9. A reference to a statute or statutory provision shall include all subordinate legislation made as of the date of this Agreement under that statute or statutory provision.
   10. A reference to writing or writing excludes fax but not email.
   11. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
3. PARTICIPATION
   1. In consideration of the Participant’s payment of the Fees (or if no Fees are payable, in consideration of the parties’ performance of their respective obligations under this Agreement), the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Contained Technologies hereby grants to the Participant a non-exclusive, non-transferable right and licence, without the right to grant sublicenses, to permit the Authorised Users to use the Platform and the Documentation during the Term solely for the purpose of sharing or receiving data with other Collaborators.
   2. [Originating Participants will be entitled to use the total number of Submissions permitted is set out in the applicable Registration Form. The limit on a Referred Participant’s Submissions will be set by the Originating Participant that referred them to the Platform.]
   3. Contained Technologies will enable the sharing of data amongst the Collaborators. The Participant may enter into Data Sharing Agreements with the relevant Collaborators with whom it wishes to share data. The relevant Data Sharing Agreement will govern the relationship between the Participant and the Collaborator. Contained Technologies will not be a party to any such Data Sharing Agreement nor shall it be responsible for any Collaborator’s compliance with a Data Sharing Agreement that it has entered into with the Participant.
   4. In relation to the Authorised Users, the Participant undertakes that:
      1. the maximum number of Authorised Users that it authorises to access and use the Platform and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
      2. it will not allow or suffer any User Subscription 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 Platform and/or Documentation;
      3. each Authorised User shall keep a secure password for their use of the Platform and Documentation, that such password shall be changed at a reasonable frequency and that each Authorised User shall keep their password confidential;
      4. it shall maintain a written, up-to-date list of current Authorised Users and provide such list to Contained Technologies within 5 Business Days of Contained Technologies’ written request at any time or times.
   5. The Participant may, from time to time during the Term, purchase additional User Subscriptions and/or permitted Submissions Contained Technologies shall make such additional Submissions available and/or grant access to the Platform and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement. If the Participant wishes to purchase additional User Subscriptions and/or Submissions, the Participant shall notify Contained Technologies in writing and Contained Technologies shall either approve or reject the request (such approval not to be unreasonably withheld). Where Contained Technologies approves the request, Contained Technologies shall activate the additional User Subscriptions and/or Submissions within [5] days of its approval of the Participant’s request and the Participant shall pay the relevant Fees for such additional User Subscriptions and/or Submissions.
   6. The Participant shall (and shall procure that its Authorised Users shall) not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property;
         
         and Contained Technologies reserves the right, without liability or prejudice to its other rights to the Participant, to disable the Participant’s access to any material that breaches the provisions of this clause.
   7. The Participant shall not:
      1. except as may be allowed by any Applicable Laws which are incapable of exclusion by Agreement between the parties and except to the extent expressly permitted under this Agreement:
         (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means;
         (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
      2. access all or any part of the Platform and Documentation in order to build a product or service Which competes with the Platform and/or the Documentation;
      3. subject to clause 13.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Documentation available to any third party except the Authorised Users,
      4. attempt to obtain, or assist third parties in obtaining, access to the Platform and/or Documentation, other than as provided under this clause 3; or
      5. introduce or permit the introduction of, any Virus into Contained Technologies’ network and information systems.
   8. The Participant shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Contained Technologies.
   9. The Participant shall:
      1. without affecting its other obligations under this Agreement, comply with all Applicable Laws and regulations with respect to its activities under this Agreement;
      2. ensure that the Authorised Users use the Platform and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
      3. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Contained Technologies’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Participant’s network connections or telecommunications links or caused by the internet.
   10. The rights provided under this clause 3 are granted to the Participant only and shall not be considered granted to any subsidiary or holding company of the Participant.
4. PLATFORM
   1. Contained Technologies shall, during the Term, make the Platform and Documentation available to the Participant on and subject to the terms of this Agreement.
   2. Contained Technologies shall use its reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for:
      1. planned maintenance carried out during the maintenance window of any non-Business Days or between 10.00 pm and 2.00 am UK time during Business Days; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that Contained Technologies has used reasonable endeavours to give the Participant at least 6 Normal Business Hours’ notice in advance.
   3. Contained Technologies will make its service desk support available to Originating Participants with Contained Technologies’ standard Participant support services during Normal Business Hours in accordance with Contained Technologies’ Support Services Policy. Contained Technologies may amend the Support Services Policy in its sole and absolute discretion from time to time.
   4. Contained Technologies undertakes that the Platform will be performed substantially in accordance with the Documentation and with reasonable skill and care. The undertaking in this clause 4.4 shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to Contained Technologies’ instructions, or modification or alteration of the Platform by any party other than Contained Technologies or Contained Technologies’ duly authorised contractors or agents. If the Platform does not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Participant with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Participant’s sole and exclusive remedy for any breach of the undertaking set out in this clause 4.4.
   5. Contained Technologies:
      1. does not warrant that:
         (a) the Participant’s use of the Platform will be uninterrupted or error-free;
         (b) that the Platform, Documentation and/or the information obtained by the Participant through the Platform will meet the Participant’s requirements;
         (c) the Software or the Platform will be free from Viruses;
         (d) the Software, Documentation or Platform will comply with any Heightened Cybersecurity Requirements;
      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 Participant acknowledges that the Platform and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   6. Subject to clause 5.4, Contained Technologies warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
   7. In the event of any loss or damage to Participant Data, the Participant’s sole and exclusive remedy against Contained Technologies shall be for Contained Technologies to use reasonable commercial endeavours to restore the lost or damaged Participant Data from the latest backup of such Participant Data. Contained Technologies shall not be responsible for any loss, destruction, alteration or disclosure of Participant Data caused by any third party (except those third parties sub-contracted by Contained Technologies to per
5. DATA PROTECTION
   1. The Participant acknowledges that the Platform is designed for sharing information relating to the produce supply chain. The Participant will pseudonymise or anonymise the Participant Data before providing it to Contained Technologies or a Collaborator using the Platform so that the Participant Data is de-identified data in the hands of Contained Technologies and, to the extent possible, does not constitute Personal Data.
   2. The parties anticipate that they will each process limited Personal Data relating to the personnel of the other party for the purpose of relationship and contract management in connection with this Agreement. 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.
   3. Without prejudice to clause 5.1, in the event that the Participant Data does constitute Personal Data the parties acknowledge that for the purposes of the Data Protection Legislation, the Participant is the Controller and Contained Technologies is the Processor of the Personal Data. The purpose of the processing is to enable the Participant to use the Platform in accordance with this Agreement and the nature of that processing activity will be limited to Contained Technologies hosting the Personal Data and enabling the Participant to share the Personal Data with Collaborators. The duration of the processing, the categories of data subjects and the types of Personal Data will be determined by the Participant.
   4. Without prejudice to the generality of clause 5.2, the Participant will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Contained Technologies and any Collaborators with whom it intends to share the Personal Data for the duration and purposes of this Agreement. The Participant will ensure that it has a lawful basis for sharing the Personal Data and will comply with its data minimisation obligations under the Data Protection Legislation. To the extent possible, Contained Technologies excludes its liability for the processing of Personal Data that the Participant shares with Contained Technologies in breach of this clause 5.
   5. Without prejudice to the generality of clause 5.2, Contained Technologies shall, in relation to any Personal Data processed in connection with the performance by Contained Technologies of its obligations under this Agreement:
      1. process that Personal Data only on the documented instructions of the Participant unless Contained Technologies is required by Applicable Laws to otherwise process that Personal Data. Where Contained Technologies is relying on Applicable Laws as the basis for processing Personal Data, Contained Technologies shall promptly notify the Participant of this before performing the processing required by the Applicable Laws unless the Applicable Laws prohibit Contained Technologies from so notifying the Participant;
      2. ensure that it has in place appropriate technical and organisational measures as are required to enable the Personal Data to be Processed in compliance with at least the obligations imposed by the Security Requirements;
      3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. assist the Participant, at the Participant’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 the ICO;
      5. notify the Participant without undue delay on becoming aware of a Personal Data Breach;
      6. at the written direction of the Participant, delete or return Personal Data and copies thereof to the Participant on termination of the Agreement unless required by Applicable Laws to store the Personal Data; and
      7. upon no less than 30 days prior written notice, allow for audits by the Participant or the Participant’s designated auditor and immediately inform the Participant if, in the opinion of Contained Technologies, an instruction infringes the Data Protection Legislation. Such audit shall be at the Participant’s cost and shall take place no more than once per calendar year. Prior to requesting such an audit, the Participant shall review the data protection and security information provided by Contained Technologies and (acting reasonably) shall not request an audit in the event that such information is sufficient to meet its accountability obligations under the Data Protection Legislation. The parties will agree the scope and timing of such an audit in advance and the Participant shall minimise any disruption to Contained Technologies’ business operations during the audit.
   6. The Participant gives general consent to Contained Technologies’ appointment of the sub-Processors listed in [X] appointing third-party processors of Personal Data under this Agreement. In the event that Contained Technologies intends to appoint a new sub-Processor, it will notify the Participant no less than [20] days in advance using the contact details provided to Contained Technologies during the registration process (or as otherwise notified to Contained Technologies in writing from time to time). The Participant may object to such proposed sub-Processor by notifying Contained Technologies within 20 days of its receipt of Contained Technologies’ notice and Contained Technologies will: (a) use commercially reasonable efforts to propose an alternative solution (which may include the Participant restricting the Personal Data that it shares with Contained Technologies, given the intended use of the Platform); or (b) terminate this Agreement upon written notice to the Participant.
   7. In the event that Contained Technologies intends to appoint a sub-Processor located in a Restricted Country, it will inform the Participant of this in the notification issued under clause 5.6 and will ensure that the appropriate safeguards in relation to the transfer are sufficient to meet the requirements of the Data Protection Legislation. Such appropriate safeguards shall include carrying out a data transfer risk assessment and putting in place the appropriate set of standard contractual clauses (namely the international data transfer Agreement or the international data transfer addendum issued by the ICO under S119A(1) Data Protection Act 2018, and any updates or replacements as may be issued by the ICO from time to time in accordance with section 119A(1)). The Participant acknowledges that it will be the relevant data exporter for transfers of Personal Data to Collaborators based in a Restricted Country and will be responsible for compliance with the Data Protection Legislation in respect of those transfers.
   8. In the event that Contained Technologies confirms that it has entered or (as the case may be) will enter with the third-party processor into a written Agreement incorporating terms which are substantially similar to those set out in this clause 5 and which reflect the requirements of the Data Protection Legislation. As between the Participant and Contained Technologies, Contained Technologies shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
6. CHARGES AND PAYMENT
   1. If the Participant is an Originating Participant, it shall pay the Fees to Contained Technologies for the User Subscriptions in accordance with this clause 6 and the applicable Registration Form.
   2. The Participant shall on the Effective Date provide to Contained Technologies valid, up-to-date and complete contact and billing details (including any required purchase order numbers).
   3. Contained Technologies shall invoice the Participant
      (a) on the Effective Date for the Fees payable in respect of the Initial Term; and
      (b) subject to clause 11.1, at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period,
      and the Participant shall pay each invoice within 30 days after the date of such invoice. The Participant shall notify Contained Technologies of any disputed amounts before the due date for payment and the parties shall seek to resolve such dispute in good faith.
   4. If Contained Technologies has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Contained Technologies:
      1. Contained Technologies may, without liability to the Participant, disable the Participant’s password, account and access to all or part of the Platform and Contained Technologies shall be under no obligation to provide any or all of the Platform while the invoice(s) concerned remain unpaid; and
      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 Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   5. All amounts and fees stated or referred to in this Agreement
      1. shall be payable in pounds sterling;
      2. are, subject to clause 10.3.2, non-cancellable and non-refundable;
      3. are exclusive of value-added tax, which shall be added to Contained Technologies’ invoice(s) at the appropriate rate.
   6. Contained Technologies shall be entitled to increase the Fees upon 90 days prior notice to the Participant and the Registration Form shall be deemed to have been amended accordingly.
7. PROPRIETARY RIGHTS
   1. The Participant acknowledges and agrees that Contained Technologies and/or its licensors own all intellectual property rights in the Platform and the Documentation. Except as expressly stated herein, this Agreement does not grant the Participant 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 Platform or the Documentation.
   2. Contained Technologies confirms that it has all the rights in relation to the Platform and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
   3. The Participant shall own all rights, titles and interests in and to all of the Participant Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Participant Data. The Participant hereby grants Contained Technologies a non-exclusive, worldwide, non-transferable licence to use the Participant Data for the Term in order to enable the Participants’ use of the Platform in accordance with this Agreement.
   4. Contained Technologies may use any user information or information generated by the Participant’s and its Authorised Users’ use of the Platform on an aggregated and anonymised basis for service improvement, security and analytics purposes. Subject to clause 7.3, Contained Technologies shall own the intellectual property rights in such information.
8. CONFIDENTIALITY
   1. Each party shall keep the other’s Confidential Information confidential and shall not divulge the same to any third party except for the purposes of this Agreement or use it itself for any other purpose without the prior written consent of the other party.
   2. The provisions of this clause 8 shall not apply to any Confidential Information that the receiving party can show:
      1. is in the public domain in substantially the same combination as that in which it was disclosed to the receiving party other than as a result of a breach of this Agreement or any other obligations of confidentiality;
      2. is or was lawfully received from a third party, not under an obligation of confidentiality with respect thereto;
      3. is required to be disclosed under the operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required);
      4. is approved for disclosure in writing; or
      5. was developed independently of and without reference to confidential information disclosed by the other party,
         
         provided that (except in the case of disclosure under clause 8.2.3) each party shall provide the other with at least ten (10) days written notice of its intention to rely upon one or more of these exceptions, such notice specifying details of the exception to be relied upon and the information concerned.
   3. Each party shall be entitled to divulge the other party’s Confidential Information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with this Agreement provided that the receiving party shall ensure that such persons are aware of and, shall procure that such persons comply with, these obligations as to confidentiality.
   4. Each party acknowledges that due to the confidential nature of the Confidential Information damages may not be an adequate remedy for breach of this clause 8 and the other party would therefore be entitled (without prejudice to other rights and remedies available) to specific performance or other equitable relief to enforce the undertakings of this Agreement.
   5. No party shall make, or permit any person to make, any public announcement concerning this Agreement 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.
9. INDEMNITY
   1. The Participant shall defend, indemnify and hold harmless Contained Technologies 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 Participant Data, provided that:
      1. the Participant is given prompt notice of any such claim;
      2. Contained Technologies provides reasonable cooperation to the Participant in the defence and settlement of such claim, at the Participant’s expense; and
      3. the Participant is given sole authority to defend or settle the claim.
   2. Contained Technologies shall defend the Participant, its officers, directors and employees against any claim that the Participant’s use of the Platform or Documentation in accordance with this Agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Participant for any amounts awarded against the Participant in judgment or settlement of such claims, provided that:
      1. Contained Technologies is given prompt notice of any such claim;
      2. the Participant does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Contained Technologies in the defence and settlement of such claim, at Contained Technologies’ expense; and
      3. Contained Technologies is given sole authority to defend or settle the claim.
   3. In the defence or settlement of any claim, Contained Technologies may procure the right for the Participant to continue using the Platform, replace or modify the Platform so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on written notice to the Participant without any additional liability or obligation to pay liquidated damages or other additional costs to the Participant.
   4. In no event shall Contained Technologies, its employees, agents and sub-contractors be liable to the Participant to the extent that the alleged infringement is based on:
      1. a modification of the Platform or Documentation by anyone other than Contained Technologies; or
      2. the Participant’s use of the Platform or Documentation in a manner contrary to the instructions given to the Participant by Contained Technologies; or
      3. the Participant’s use of the Platform or Documentation after notice of the alleged or actual infringement from Contained Technologies or any appropriate authority.
      4. The preceding states the Participant’s sole and exclusive rights and remedies, and Contained Technologies’ (including Contained Technologies’ employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10. LIMITATION OF LIABILITY
    1. Except as expressly and specifically provided in this Agreement:
       1. the Participant assumes sole responsibility for the information and results obtained from the use of the Platform and the Documentation by the Participant, and for conclusions drawn from such use. Contained Technologies shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Contained Technologies by the Participant in connection with the Platform, or any actions taken by Contained Technologies at the Participant’s direction;
       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 this Agreement; and
       3. the Platform and the Documentation are provided to the Participant on an “as is” basis.
    2. Nothing in this Agreement excludes or limits the liability of: (i) the Participant for breach of clause 3; or (ii) either party:
       1. for death or personal injury caused by Contained Technologies’ negligence;
       2. for fraud or fraudulent misrepresentation;
       3. under the indemnities in clause 9; or
       4. any other liability that cannot be excluded by law.
    3. Subject to clause 10.1 and clause 10.2:
       1. Neither party shall 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 this Agreement; and
       2. Each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of £1,000 or the total Fees paid and payable for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
11. TERM AND TERMINATION
    1. This Agreement shall, unless otherwise terminated as provided in this clause 11, commence on the Effective Date and shall continue unless:
       1. either party terminates this Agreement upon no less than 30 days prior written notice to the other party; or
       2. otherwise terminated in accordance with the provisions of this Agreement;
          
          and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
    2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
       1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
       2. the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
       3. the party shall be entitled to terminate this Agreement immediately upon notice in writing to the other if the other makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, scheme of the arrangement, receivership, administration, liquidation, bankruptcy or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of a distraint, execution, event of insolvency or event of bankruptcy or any similar process or event, whether in the United Kingdom or otherwise.
    3. On termination of this Agreement for any reason:
       1. all licences granted under this Agreement shall immediately terminate and the Participant shall immediately cease all use of the Platform and/or the Documentation;
       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; and
       3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
12. FORCE MAJEURE
    Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for the performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Agreement by giving 30 days written notice to the affected party.
13. GENERAL
    1. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
    2. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    3. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
    4. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    5. If any provision or part-provision of this Agreement 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 this Agreement. If any provision or part-provision of this Agreement is deemed deleted under clause 13.5 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.
    6. This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous and contemporaneous Agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
    7. The Participant shall not, without the prior written consent of Contained Technologies, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Contained Technologies 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 this Agreement.
    8. Nothing in this Agreement 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).
    9. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
    10. This Agreement may be executed in any number of counterparts, and by the parties on separate counterparts, each of which so executed will be an original, but all the counterparts will together constitute one and the same Agreement.
    11. In the event of a conflict between the terms of these Terms and Conditions and any Registration Form, the terms of the Registration Form shall prevail.
    12. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
        1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
        2. sent by email to the following addresses (or an address substituted in writing by the party to be served):
           (a) Contained Technologies: support@contained.io
           (b) Participant: the email address provided during the registration process
    13. Any notice shall be deemed to have been received:
        1. if delivered by hand, at the time the notice is left at the proper address;
        2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
        3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
           
           This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
    14. This Agreement 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 interpreted in accordance with the law of England and Wales.
    15. 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).