Encompass Corporation Customer Service Agreement
This notice is made and the terms set out below are published by Encompass Corporation UK Limited (a company registered in Scotland with Company Number SC493055), whose registered office is Level 3, 33 Bothwell Street, Glasgow, G2 6NL (Encompass), and whose email address is firstname.lastname@example.org, and telephone number is +44 (0) 333 772 0002.
Encompass Corporation UK Limited is registered for VAT with VAT number 211 2643 58.
Our website is located at www.encompasscorporation.com.
The definitions and rules of interpretation in Schedule 1 (Interpretation) apply.
This Agreement begins on the Commencement Date and, subject to earlier termination in accordance with its terms, continues for the period set out in the Order Form.
Subject to this Agreement, Encompass shall:
3.1.1 supply the Professional Services; and
3.1.2 make available the Encompass Service thirty (30) days after Encompass has notified the Customer that the Encompass Service is ready for use, or, if earlier, on the date requested by the Customer (which shall be no earlier than the date that the Encompass Service is ready for use as notified by Encompass), and the Customer shall pay the Charges.
3.2 Grant of licence by Encompass
3.2.1 Subject to clause 4 (Data and Data Providers), to the payment of the Charges when due, and to compliance by the Customer with this Agreement in all other respects, Encompass hereby grants to the Customer and, where the Order Form so provides, its Affiliates, a non-exclusive, non-transferable licence to permit End Users to use the Encompass Service and, subject to clause 4 (Data and Data Providers), the Encompass Materials.
3.2.2 Nothing in this Agreement removes the need for the Customer to acquire at its cost the necessary rights to use any other software, works or materials required for the use of the Encompass Service in accordance with this Agreement, and the Customer shall provide all equipment, systems and services that are necessary to access the Encompass Service.
3.3 Prohibited acts
3.3.1 The Customer shall not, and shall procure that End Users shall not:
- except to the extent permitted by Regulations, adapt, translate, arrange, or alter the Encompass Platform, reverse engineer, decompile or disassemble the Encompass Platform;
- do any unauthorised act in relation to the Encompass Service;
- circumvent or avoid the use of any security device or process designed to protect against unauthorised or unlawful use of the Encompass Service or the Encompass Platform;
- use the Services for the benefit of any third party, other than an Affiliate of the Customer where the Order Form so provides, including for, or in connection with, the provision of services which consist in whole or part in the use of the Services;
- redistribute, retransmit, or disseminate the Encompass Materials;
- use the Services otherwise than in accordance with this Agreement.
3.3.2 References in clause 3.3.1 to the doing of any act includes any attempt to do so, or to cause or permit any third party to do, or to attempt, the act in question.
3.4 Grant of licence by the Customer
3.4.1 The Customer hereby grants to Encompass a non-exclusive licence to use data relating to the use of the Encompass Service by End Users for the purpose of:
- aggregating the data with data relating to use of the Encompass Service by other customers;
- analysing use of the Encompass Service and preparing documents and reports relating to the Encompass Service; and
- disclosing and otherwise exploiting the documents and reports to which clause 3.4.1(b) refers, but not to disclose the identity of the Customer, its Affiliates, or End Users.
3.4.2 Any act within the scope of the licence to which clause 3.4.1 may done on behalf of Encompass by agents and contractors of Encompass and providers of services to Encompass.
4. Data and data providers
4.1 Access to Data
Subject to this Agreement, Encompass shall:
4.1.1 The Customer acknowledges that Data is accessible by means of the Encompass Service in the form and manner, subject to such restrictions and other terms, according to the timing, and for so long as, the Data are put into circulation by the Data Provider; accordingly, Encompass undertakes no obligation or responsibility, and excludes all liability, under or in connection with this Agreement in relation to any and all Data, the acts or omissions of a Data Provider, or the systems used by the Data Provider, including any and all of the following:
- the failure of a Data Provider to put into circulation any Data;
- the withdrawal or suspension of, or the imposition of restrictions on the use of or access to, any Data previously put into circulation by a Data Provider;
- the delay of a Data Provider in putting into circulation any Data; and
- the quality of Data.
4.1.2 It is the Customer’s responsibility to ensure that the restrictions and other terms (if any) that are published by a Data Provider or contained in a contract to which clause 4.2.4 refers and applicable to the use of Data, including the Additional Terms, are suitable for its requirements.
4.2 Additional terms relating to Data Providers
4.2.1 The terms, disclaimers and proprietary notices set out in Schedule 4 (Data Provider Terms) form part of this Agreement (any or all of them being Additional Terms) and each Data Provider identified in relation to Additional Terms shall have the benefit of them as a third-party beneficiary.
4.2.2 The Customer shall comply with and accepts on its own behalf, and on behalf of its Affiliates, that the Customer is and they are subject to the Additional Terms relating to Data accessible by End Users to which the Additional Terms apply.
4.2.3 Where there is a conflict or inconsistency between this Agreement excluding any Additional Terms and those Additional Terms, the latter prevail (as far as relates to the benefit of the relevant Data Provider only) to the extent of the conflict or inconsistency.
4.2.4 Where the Customer has its own contract with a Data Provider under which the Customer accesses Data made available by the Data Provider:
- except where Encompass already has the Data Provider’s consent to do so, the Customer hereby authorises Encompass to connect the Encompass Platform to the Data Provider’s systems for that purpose, and shall obtain the consent of the Data Provider to permit Encompass to do;
- the Customer acknowledges that a failure of the Data Provider to consent to Encompass connecting the Encompass Platform to the Data Provider’s systems (in the manner required by Encompass) may prevent Encompass providing the Encompass Service in relation to the Data Provider’s data, and that shall not affect the Customer’s obligations under this Agreement; and
- the Customer warrants that it is not prohibited from accessing the Data Provider’s data via the Encompass Service, and undertakes to perform its obligations and liabilities under or in connection with its contract with the Data Provider.
5.1 Costs of Data
All costs (if any) in respect of Data obtained from Data Providers are for the Customer’s account, are in addition to the fees set out in the Order Form, and where Encompass bears the liability for them (as between the parties), the costs shall be included in the Charges.
5.2.1 The Customer shall pay the Charges without set-off in respect of any liability of Encompass within thirty (30) calendar days after the date of the invoice.
5.2.2 The Customer will be issued with invoices:
- on the Commencement Date and then in accordance with the billing frequency indicated on the Order Form in advance for the subscription fees in respect of the use of the Encompass Service; and
- as otherwise provided in the Order Form for overage or other additional fees arising under the Order Form.
5.2.3 Any amount due to Encompass under this Agreement is not to be taken to have been made or received for the purposes of this Agreement unless and until the amount is received by Encompass in cleared funds made by direct credit for same day value to the bank account nominated by Encompass from time to time.
5.2.4 The Charges are exclusive of value added tax, which shall be added to the Charges by Encompass when required to do so, and paid by the Customer in accordance with this clause.
5.2.5 The Customer shall pay Encompass all applicable Charges in the currency indicated on the Order Form. Where a currency is not referred to, the Charges will be paid in Pound Sterling. The Customer authorises Encompass to charge the Customer for all applicable Charges using the Customer’s selected payment method.
5.2.6 All Charges are non-refundable except as required by law or as otherwise specifically provided in this Agreement.
5.3 Annual increases
The subscription fee in respect of the use of the Encompass Service and any other amounts used to calculate the fees due to Encompass under an Order Form shall be increased with effect from each anniversary of the Commencement Date by an amount equal to five per cent (5%) of the fee or amount having effect immediately before the relevant anniversary of the Commencement Date.
5.4 Default interest
If the Customer fails to pay any sum due and payable under this Agreement by the due date, interest at the rate of five per cent (5%) above the base rate of HSBC Bank plc shall accrue from time to time on the unpaid amount from the due date to the date of actual payment (after as well as before judgment).
6.1.1 Encompass shall:
- provide the Professional Services with reasonable care and skill and in accordance with the Professional Services Terms; and
- make available the Encompass Service in accordance with the Service Levels.
6.1.2 Encompass warrants that searches formulated by End Users and Data received by the Encompass Platform in response to searches formulated by End Users shall be processed by the Encompass Platform accurately in accordance with the Policies.
6.1.3 Any errors in and insufficiencies of the Encompass Service (if any) arising after an End User first uses the Encompass Service in production shall be dealt with as part of the Encompass Service to the exclusion of a claim for a breach of clause 6.1.1(a).
6.1.4 Encompass’ sole liability and the Customer’s exclusive remedy for a failure to provide or the defective or delayed provision of the Services or a breach of clause 6.1.2, shall be for Encompass to re-perform the relevant Services as soon as reasonably practicable.
6.1.5 Subject to the previous provisions of this clause, Encompass gives no assurance (whether by way of representation, warranty, undertaking or otherwise) as to the operation, quality, conformance to description or sample, functionality, or performance, of the Encompass Service or the Encompass Platform, whether taken alone or as may be incorporated into any system or network.
6.2 Suspension of the Encompass Service
6.2.1 Encompass may suspend the access to or use of the Encompass Service by any or all of the End Users if Encompass determines that use of the Encompass Service:
- is in breach of this Agreement;
- poses a security risk;
- is adversely impacting or may adversely impact (as appropriate) the Encompass Service or any service provided by Encompass to a third party;
- is in breach of Regulations; or
- where it is in the legitimate interests of Encompass to do so, including where there is a reasonable risk that the Customer may default in the payment of the Charges,
and Encompass shall use its reasonable endeavours to notify the affected End Users before the suspension takes effect and as soon as reasonably practicable thereafter, and may use any reasonable means to do so.
6.2.2 Where Encompass suspends access to or use of the Encompass Service in accordance with this Agreement:
- other than under clauses 6.2.1(a) or 8.2.2, the Customer remains responsible for all Charges up to the date of the suspension (and after the Encompass Service is once again available for access or use);
- under clauses 6.2.1(a) or 8.2.2, the Customer remains responsible for all Charges.
6.3 General duties
6.3.1 as soon as reasonably practicable, notify the Customer if Encompass is unable or fails to, or is likely to be unable or fail to, provide the Services to a material degree, giving the reasons in reasonable detail, and otherwise disclose to the Customer any development that may have a material and adverse impact on its ability to perform the Services;
6.3.2 co-operate with the Customer and any competent authority having authority in relation to the Customer or its Affiliates which are entitled to use the Services, including in connection with the discharge or exercise of any legal or regulatory duty, or any investigation by or on behalf of the Customer, such Affiliates, or competent authority, and that co-operation may include access to documentation, information, data, and premises in the possession or control of Encompass, subject to such safeguards as Encompass may require to protect the integrity, security, confidentiality, and safety of (as appropriate) its systems, data (including data of other customers), premises and staff; and
6.3.3 use reasonable care and skill to supervise the performance of its obligations and liabilities under this Agreement and manage the associated risks.
7. Use of the Encompass service
7.1.1 The Customer shall, and shall procure that all End Users shall, use the Encompass Service in accordance with:
- Regulations; and
- all other terms of this Agreement.
7.1.2 The Customer shall establish and maintain all reasonable technical and organisational measures against:
- unauthorised or unlawful access to and use of the Encompass Service; and
- accidental loss or destruction of, or damage to, the Encompass Service.
7.1.3 The Customer shall not, and shall procure that End Users shall not, store, distribute or transmit any material through the Encompass Service that is unlawful, harmful, threatening, defamatory, obscene, infringes the rights of third parties, is harassing or racially or ethnically offensive, facilitates illegal activity, or promotes discrimination.
The Customer is responsible for all access to and use of the Encompass Service on or through the Customer’s account under this Agreement, whether or not by an End User or otherwise authorised by or on behalf of the Customer.
7.3 End users
The Customer undertakes that all End Users shall be suitably qualified and trained in use of the Encompass Service.
7.4 Risk of using the Encompass Service
The Customer undertakes to Encompass that (as between the parties) the Customer assumes all risk of Loss incurred or sustained by the Customer or its Affiliates arising from reliance on the Encompass Service and the Encompass Materials, including with respect to compliance with Regulations.
8.1 Security Information
8.1.1 The Customer shall keep accurate, complete, and up to date records of all End Users and the Security Information applicable to those End Users and shall ensure that the Encompass Platform contains the requisite details of End Users entitled from time to time to use the Encompass Service.
8.1.2 The Customer shall, and shall procure that each End User shall:
- keep the Security Information secure against unauthorised access or use; and
- not disclose any Security Information to any other End User or other third party, nor (without affecting the general nature of this clause) cause or permit any End User or other third party to use Security Information on behalf of an End User.
8.2 Breach of security in relation to Security Information
8.2.1 If any Security Information is disclosed or used without authorisation, or there are reasonable grounds to believe that to be the case, the Customer shall immediately notify Encompass through the Website or its normal account contact, giving reasonable details of the circumstances, including the Security Information the security, integrity and confidentiality of which has or may have been compromised.
8.2.2 Encompass may suspend or terminate the validity of any or all Security Information where any Security Information has been disclosed or used without authorisation, or where it believes that to be the case, and shall not be required to reinstate access to the Encompass Service (whether by issuing replacement Security Information or otherwise) to any or all affected End Users unless and until Encompass is satisfied (in its absolute discretion) that the security, integrity and confidentiality of the Encompass Service is no longer at risk.
8.3.1 Encompass shall conduct industry standard checks, in accordance with its security policies from time to time, intended to detect the presence of a Virus in the Encompass Materials or which may affect the Encompass Service, and shall use all reasonable endeavours to remove any Virus so detected.
8.3.2 Clause 8.3.1 sets out the only obligation of Encompass under this Agreement in relation to the detection or removal of Viruses in the Encompass Materials or which may affect the Encompass Service.
Encompass may change features of the Encompass Platform or the Encompass Service and shall provide reasonable prior notice to the Customer where the change may require any change to any of the Customer’s software, works or materials, equipment, or systems to which clause 3.2.2 refers.
Encompass is entitled on reasonable notice from time to time to require the Customer to permit or procure the permission for a duly authorised employee, agent or representative of Encompass to audit the use of the Encompass Service and the Encompass Materials, and to assess compliance with this Agreement, including for this purpose to access premises and systems, and to take copies of records.
11.1 Termination for breach
11.1.1 Subject to Clause 11.1.2, either party may by giving notice to the other terminate this Agreement as from the date of expiry of the notice if the other commits a material breach of this Agreement which, in the case of a breach capable of remedy, is not remedied within thirty (30) Business Days after the other has given notice containing details of the breach and requiring the breach to be remedied.
11.1.2 Failure to pay the Charges when due is a material breach of this Agreement, and the period to which clause 11.1.1 refers (for the purpose of remedying the breach) is ten (10) Business Days.
11.2 Termination for Insolvency Event
11.2.1 Either party may at any time, by notice to the other, terminate this Agreement as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.
11.2.2 Each party undertakes to inform the other:
12. Consequences of Termination
12.1 Accrued rights and survival
Termination of this Agreement:
12.1.1 does not affect the rights or liabilities of the parties which have accrued in accordance with this clause or otherwise have accrued due on or before termination;
12.1.2 is without prejudice to any other rights that any party may have; and
12.1.3 does not affect the continuance in force of any of the provisions of clauses 3.4 (Grant of licence by the Customer), 4.1 (Access to Data), 7.4 (Risk of using the Encompass Service), 14 (Intellectual Property Rights), 15 (Confidentiality), 17 (Indemnity and Third Party Claims), and 18 (Limitation of liability), which survive termination of this Agreement.
12.2 Use of the Encompass Service
The right to use the Encompass Service ends immediately upon termination of this Agreement, and (as between the parties) the Customer may retain and use the Encompass Materials acquired by the Customer prior to the date of termination on the same terms that applied immediately before termination.
12.3 Outstanding Charges
All Charges which are outstanding on the date of termination shall become immediately due and payable.
12.4 Customer Data
All Charges which are outstanding on the date of termination shall become immediately due and payable.
12.4.1 Subject to clause 12.4.2, the Customer is entitled by notice in writing to Encompass, received within the three (3) months after the date of termination of this Agreement, to request the delivery-up of the Customer Data in the possession or control of Encompass, and Encompass shall provide a copy of the Customer Data in a .csv format or such other industry standard format that the Customer requires (acting reasonably) as soon as reasonably practicable after receipt of the Customer’s notice.
12.4.2 Encompass is entitled to retain Customer Data in accordance with this Agreement in accordance with Encompass’ records retention policy from time to time or (if earlier) until such time as the Customer Data may not be retained in accordance with Regulations.
Each party warrants to the other that it has full right, power, and authority to enter into and perform its obligations under this Agreement.
14. Intellectual property rights
The Customer acquires no right, title or interest in or to the Encompass Platform, the Encompass Service or the Encompass Materials, or any of the Intellectual Property Rights subsisting in or relating to the Encompass Platform, the Encompass Service or the Encompass Materials, which (as between the parties) are owned by Encompass and all rights are reserved save as set out in this Agreement.
14.2.1 Encompass shall defend the Customer or its Affiliates authorised to use the Services (Relevant Licensees) against, or at the option of Encompass settle, any claim, allegation, action, dispute or proceedings (Claim) by a third party that use of the Services in accordance with this Agreement infringes any Intellectual Property Rights, and shall be responsible for any damages, reasonable costs (including legal fees) and expenses finally awarded against the Relevant Licensees as a result of or in connection with any Claim or payable under a settlement of the Claim approved by Encompass in writing.
14.2.2 If an infringement to which clause 14.2.1 refers occurs or may occur, Encompass may at its discretion and expense:
- procure for Relevant Licensees the right to continue using the Services in accordance with this Agreement; or
- render the Services non-infringing without any material reduction in quality, functionality, or performance.
14.2.3 If Encompass is unable, using reasonable efforts, to cure an infringement pursuant to clause 14.2.2, Encompass may terminate this Agreement and refund any Charges prepaid in respect of the unexpired term of this Agreement.
14.2.4 This clause 14.2 constitutes the Customer’s exclusive remedy and Encompass’s only liability for Claims.
15.1 Undertakings of confidentiality
15.1.1 Each party undertakes to the other in relation to the Confidential Information of the other:
- to keep confidential all Confidential Information;
- not to disclose Confidential Information without the other’s prior written consent except:
- to those of its employees who need to know the Confidential Information; or
- on a need to know basis in connection with a due diligence process in connection with mergers, acquisitions, disposals, capital, contributions, or funding,
and otherwise in accordance with this Agreement; and
- not to use Confidential Information except in accordance with this Agreement or for the purposes of performing its obligations under this Agreement, and in particular not to use Confidential Information to obtain a commercial, trading or any other advantage.
15.1.2 Clause 15.1.1 does not apply to Confidential Information to the extent that it is:
- already in the possession of the recipient free of any duty of confidentiality on the date of its disclosure;
- in the public domain, other than as a result of a breach of this Agreement;
- disclosed to the recipient or any of its Affiliates by a third party after initial disclosure of the Confidential Information, except where the recipient or its Affiliate (as appropriate) is aware or ought reasonably to be aware that the third party is subject to a duty of confidence owed to the disclosing party or any of its Affiliates or is otherwise prohibited from disclosing the information in the circumstances in which the disclosure is made; or
- required to be disclosed:
- pursuant to Regulations; or
- in connection with proceedings before a court or for the purpose of receiving legal advice,
but only to the extent and for the purpose of that disclosure.
15.1.3 If a party is to disclose Confidential Information under clause 15.1.1(b)(ii), that party shall ensure, to the extent it is able to do so, that every person to whom disclosure is made pursuant to that clause uses such Confidential Information solely for such purposes and is bound by obligations of confidentiality.
15.2 Damages not an adequate remedy
Each party acknowledges that Confidential Information is valuable and that damages might not be an adequate remedy for any breach of clause 15.1 (Undertakings of confidentiality) and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of clause 15.1 (Undertakings of confidentiality).
16. Data protection
16.1 Compliance and roles of the parties
16.1.1 Each party shall comply with Data Protection Legislation.
16.1.2 The parties acknowledge that, as between them, in relation to the Customer’s and its Affiliates’ use of the Encompass Service, the processing of personal data by the Customer and its Affiliates (as appropriate) shall be as controller, and each of them (being a Controller) shall determine the purpose for which and the means by which Relevant Personal Data are processed by Encompass whilst performing the Services, and Encompass shall be the Controller’s processor.
16.1.3 At the Commencement Date, in relation to the Customer’s or its Affiliates use of the Encompass Service, the subject matter of the processing of personal data, the nature and purpose of the processing, the type of personal data that are anticipated will comprise the personal data so processed, and the associated categories of data subjects, are described in Schedule 3 (Relevant Personal Data).
16.2 Return or destruction of personal data
All personal data acquired by a party from another for the purposes of the Services, including in the case of the Customer the Relevant Personal Data, shall be returned or deleted (at the option of the requesting party) on request save to the extent required by the requested party to discharge its obligations under this Agreement or under Regulations, and any personal data which is retained shall be returned or (as far as reasonably practicable) deleted immediately it is no longer required for such purposes.
16.3 Documented instructions
16.3.1 Encompass shall process Relevant Personal Data in accordance with documented instructions from the Controller, except:
- where and to the extent an instruction is contrary to processing which Encompass (or any person doing so under the authority of Encompass) must perform under Regulations, of which reasonable prior notice has been given to the Customer by Encompass, unless the Regulations prevent or restrict the giving of the notice; or
- the instruction gives rise to a Data Protection Termination Event.
16.3.2 All processing of Relevant Personal Data in accordance with this Agreement shall be deemed to be pursuant to the documented instructions of the Controller.
16.3.3 Encompass shall inform the Controller if, in Encompass’ opinion, any of the Controller’s instructions would breach Data Protection Legislation having regard to the information then available to Encompass.
16.3.4 The Customer acknowledges that, to make available the Encompass Service, Encompass shall rely on Cloud Services which may involve processing of Relevant Personal Data, such as storage of Relevant Personal Data.
16.3.5 The Customer on its own behalf, and as agent for its Affiliates entitled to use the Encompass Service, hereby authorises Encompass and Sub-processors to process Relevant Personal Data as part of the Services in accordance with the Agreement.
16.3.6 Except on documented instructions from the Controller or otherwise provided by this Agreement, Encompass shall not transfer any Relevant Personal Data to any country or territory outside of the United Kingdom other than to members of the European Economic Area, or the European Economic Area other than to the United Kingdom, or to any international organisation.
16.3.7 If a Sub-processor processes Relevant Personal Data as part of Cloud Services at a location outside of the United Kingdom other than the European Economic Area, or the European Economic Area other than the United Kingdom, and not in a country considered by the United Kingdom or European Commission respectively to provide adequate protection for the processing of personal data, Encompass shall ensure that the processing which takes place in that location is subject to adequate protection in accordance with Data Protection Legislation.
16.4 Organisational and technical measures
Encompass shall establish and maintain technical and organisational measures in accordance with ISO27001 against Data Protection Events occurring in relation to Relevant Personal Data, and regularly test, assess, and evaluate them with reasonable care and skill and in accordance with Regulations.
16.5 Relevant Personnel
16.5.1 take reasonable steps to ensure the reliability of Relevant Personnel, and that they process Relevant Personal Data as part of the Services in accordance with this Agreement only;
16.5.2 provide training for Relevant Personnel so that they are aware of Encompass’ obligations under Data Protection Legislation and inform them of the importance of the need to avoid Data Protection Events;
16.5.3 have in place disciplinary procedures in respect of non-compliance with relevant data protection requirements and standards;
16.5.4 ensure that Relevant Personnel have committed themselves to be bound by confidentiality provisions; and
16.5.5 appoint a person to be responsible for security and data protection matters and provide the name of such person to the Customer on request.
16.6 General data protection obligations
16.6.1 Encompass shall without undue delay, and in any event no later than reasonably required to enable the Controller to fulfil its duties under Data Protection Legislation:
- provide such information as the Controller may reasonably require in relation to Relevant Personal Data or its processing and allow for and contribute to audits, including inspections, in accordance with clause 6.3.2;
- pass on to the Controller any enquiries or communications (including subject access requests) from data subjects relating to their Relevant Personal Data or its processing;
- provide to the Controller such information in the possession or control of Encompass as may be required for the purpose of responding to any such data subject;
- report to the Controller any security incidents or breaches relating to the Relevant Personal Data and provide such information as the Controller may reasonably require in relation to the incident or breach.
16.6.2 Subject to clause 16.6.1, Encompass shall assist the Controller with:
- the conduct of a data protection impact assessment in relation to Relevant Personal Data; and
- responding to requests of data subjects to exercise their rights in respect of the processing of their Relevant Personal Data,
subject to payment by the Customer of a reasonable charge in respect of such assistance.
16.7.1 Where and to the extent the Encompass Service, including the processing of Relevant Personal Data, relies on Cloud Services provided to Encompass or any of its Affiliates:
- the policies and procedures of the Sub-processors providing the Cloud Services, and the terms having effect from time to time between Encompass and such Sub-processors, in relation to the processing of Relevant Personal Data as part of the Cloud Services (Relevant Sub-processing) shall be included in this Agreement (with such changes as are necessary being deemed to be made) (Additional Data Processing Terms), and shall apply to any Relevant Sub-processing of Relevant Personal Data to the exclusion of any provisions to the contrary in the Agreement; and
- the manner in which and the extent to which the Controller exercises or is entitled to exercise rights under this Agreement in respect of Relevant Personal Data that are the subject of the Relevant Sub-processing shall be subject to the Additional Data Processing Terms.
16.7.2 Encompass is liable for a breach of this Agreement which is caused by the acts or omissions of Sub-processors.
16.7.3 A list of the appointed Sub-processors and a description of the Cloud Services on which Encompass relies from time to time (Sub-processor Information) is available from Encompass on request.
16.7.4 After the Commencement Date, Encompass shall not without the prior specific written consent of the Customer (on its own behalf and on behalf of all (if any) other Controllers) engage a sub-contractor or confer on any other third party (directly or indirectly) authority to process Relevant Personal Data, including in the course of Cloud Services, and if such consent is provided by the Customer in relation to a sub-contractor, without first entering into a contract with that sub-contractor under which the sub-contractor agrees to comply with obligations the same as those set out in the Agreement so far as material in relation to the processing of Relevant Personal Data.
16.7.5 Encompass may implement a mechanism for giving notices of changes to the Sub-processor Information automatically, and (where Encompass does so) the Customer shall make use of that mechanism; any notice given by Encompass of a change to the Sub-processor Information shall be received by the Customer on its own behalf and as agent for each other Controller.
16.7.6 Where the Customer does not object to the engagement of a sub-contractor or the conferring of authority on any other third party to process Relevant Personal Data within ten (10) Business Days’ after receipt of notice from Encompass of the proposed change to the Sub-processor Information, the right of the Customer and any other Controller to object shall lapse, and Encompass may proceed with the engagement or conferring of the authority; where the Customer is in breach of clause 16.7.5, the Customer shall be deemed to have received notice of the change to the Sub-processor Information within five (5) Business Days after the relevant change is communicated to the Customer by Encompass using the mechanism to which clause 16.7.5 refers.
16.7.7 Instructions in relation to the processing of Relevant Personal Data given by the Customer must be addressed to Encompass and may include the correction, deletion or blocking of Relevant Personal Data where the Encompass Service does not enable the Customer to do so itself.
16.7.8 Encompass and Sub-processors are entitled to suspend the performance of instructions from the Controller which it believes contravenes Data Protection Legislation until the Controller has confirmed or modified the instruction accordingly; the Customer shall immediately in writing confirm or modify the instructions of a Controller after being requested by Encompass to do so.
16.8 Data Protection Termination Events
Where a Data Protection Termination Event occurs, Encompass is entitled to terminate this Agreement by giving not less than sixty (60) days’ notice to the Customer, and shall refund any Charges paid in advance in respect of the period from the date of termination to the end of the then current subscription term, pro rata on a time basis according to the proportion of the subscription term which that period represents.
16.9 Controller rights
As soon as reasonably practicable after a request from the Customer to do so, Encompass shall enter into any deed or other document with the Controller (other than the Customer) in order to enable the Controller to comply with Data Protection Legislation in relation to the processing of Relevant Personal Data under this Agreement.
17. Indemnity and third-party claims
17.1 Customer indemnity
The Customer shall indemnify Encompass, its Affiliates, Data Providers, and its or their officers, employees, agents and contractors (Indemnified Persons) in respect of all Loss incurred or sustained by the Indemnified Persons arising from or in connection with any claim by any third party relating to use of the Encompass Service by End Users, or by or on behalf of the Customer or its Affiliates except where and to the extent the claim is due to the fraud, negligence or breach of this Agreement by Encompass.
17.2 Indemnifying party protection
Where an Indemnified Person claims under clause 17.1, or a Relevant Licensee claims under clause 14.2 (Infringement), in either case in respect of a claim of a third party (Third Party Claim) the rights of the Indemnified Person or the Relevant Licensee (as appropriate) (Claiming Party) are subject to and conditional on the Claiming Party satisfying the following:
17.2.1 as soon as reasonably practicable giving Encompass or the Customer (as appropriate) (Defending Party) written notice of the Third Party Claim;
17.2.2 not admitting liability or making any offer, promise, compromise, settlement or communication with the third party in respect of the Third Party Claim;
17.2.3 surrendering to the Defending Party or its insurers in the name of the Claiming Party the conduct of the defence, settlement or counterclaim of the Third Party Claim, and providing to the Defending Party or its insurers all reasonable information and assistance in connection with the defence or settlement of the Third Party Claim (as appropriate); and
17.2.4 where the Claiming Party is a Relevant Licensee, the Customer having complied with this Agreement.
18. Limitation of liability
18.1 Event of Default
18.1.1 This clause 18 (Limitation of Liability) sets out the maximum liability of Encompass in respect of the following (each being an Event of Default):
- a breach by Encompass of this Agreement, including any wilful or deliberate breach of contract; and
- a tortious act or omission (including negligence), breach of statutory duty or misrepresentation, of Encompass in connection with this Agreement,
and all other liability is excluded, except that nothing in this Agreement shall affect the liability of Encompass for death or personal injury, fraud, under clause 14.2 (Infringement), or any other liability to the extent it cannot be excluded or limited by law.
18.1.2 Encompass has no liability for an Event of Default other than to the Customer, except where provided to the contrary in the Order Form, in which case, that liability shall be taken into account for the purposes of this clause as if the liability were incurred to the Customer.
18.2 Financial limitation
Encompass’ total financial liability for all Events of Default in each period of twelve (12) months or part thereof (a Contract Year) during the term of this Agreement commencing on the Commencement Date and each anniversary of the Commencement Date shall not exceed an amount equal to the Charges paid and payable from time to time during the Contract Year.
18.3 Consequential Loss
In no event shall Encompass be liable, whether for breach of contract, any tortious act or omission (including negligence) or otherwise, under or in connection with this Agreement for any Loss for which the Customer has assumed the risk under this Agreement, loss of profit, loss of reputation, loss of business, revenue or goodwill, anticipated savings, loss or damage to data, or for any consequential or indirect loss, and regardless of whether the loss or damage would arise in the ordinary course of events, is reasonably foreseeable, is in the contemplation of the parties, or otherwise.
18.4 Exclusion of implied terms
All warranties, conditions or terms not set out in this Agreement and which would otherwise be implied or incorporated into this Agreement by statute, common law or otherwise (other than as to title to goods) are hereby excluded except to the extent they may not be excluded or limited by law.
19. Rights of third parties
19.1 Benefits of this Agreement
Except as provided in this clause, this Agreement does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it.
The following are beneficiaries under the provision to which this clause refers and may enforce the benefit of it under the Contracts (Rights of third parties) Act 1999 except that the parties may rescind or vary the provision in question without the consent of the relevant third party:
19.2.1 Affiliates to which the Order Form refers are entitled to the benefit of the Customer’s rights under this Agreement to the extent they use the Services;
19.2.2 Data Providers under clause 4.2.1;
19.2.3 Indemnified Persons under clause 17.1 (Customer Indemnity);
19.2.4 competent authorities in respect of any right expressly conferred on competent authorities under this Agreement.
20.1 Identifying Customer
Subject to obtaining the Customer’s prior consent, which may not be unreasonably withheld or delayed, Encompass may identify the Customer as a user of the Encompass Service from time to time.
20.2 Press release and case study
Without affecting the general nature of clause 20.1, the Customer agrees to provide editorial input and approve (acting reasonably) content for:
20.2.1 a press release to be used within ninety (90) days after the Commencement Date stating that the Customer has acquired the Encompass Service, including a statement from a senior executive in the Customer’s organisation on why the Encompass Service was chosen; and
20.2.2 a case study to be released within the twelve (12) months after the Commencement Date describing the Customer’s use of the Encompass Service, including a statement from a senior executive in the Customer’s organisation on the benefits gained.
21. Anti-bribery, corruption and modern slavery
Without affecting the general nature of clause 20.1, the Customer agrees to provide editorial input and approve (acting reasonably) content for:
21.1.1 comply with Regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);
21.1.2 have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
21.1.3 promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by Encompass in connection with the performance of this Agreement;
21.1.4 on the Customer’s request, not to be made more than once per 12-month period, certify to the Customer in writing signed by an officer of Encompass compliance with this clause 21.1 by Encompass.
21.2 Modern Slavery
21.2.1 In performing their obligations under this Agreement, both parties shall comply with all applicable anti-slavery and human trafficking Regulations, including the Modern Slavery Act 2015.
21.2.2 Encompass shall at the request of the Customer (acting reasonably), provide such information as the Customer may reasonably require regarding the steps Encompass has taken to ensure that slavery and human trafficking is not taking place in any of its supply chains or in any part of its business; the Customer shall reimburse Encompass its reasonable costs of complying with requests of the Customer under this clause.
22.1 Entire agreement
22.1.1 This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all representations, including all pre-contract representations, misrepresentations, and misstatements negligently or innocently made, agreements, negotiations, or understandings between the parties, relating to its subject matter, except that this clause does not affect the liability of either party for any fraudulent misrepresentation.
22.1.2 Each of the parties represents, warrants, and undertakes that:
- in entering into this Agreement, the party does not rely on any statement, representation, misrepresentation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement; and
- it shall not claim any remedy in respect of statements, representations, misrepresentations, warranties, or understandings made or repeated in this Agreement or in relation to this Agreement, other than breach of contract, and which shall be to the exclusion of any other remedy in respect of such statements, representations, misrepresentations, warranties, or understandings upon which it may have relied in entering into this Agreement, whether for misrepresentation or otherwise.
22.2 Force majeure
22.3 Remedies cumulative
22.4.1 Any notice to be given under this Agreement shall be in writing, and shall either be delivered by hand, email, or sent by first class pre-paid post (or in the case of overseas post, by airmail). Delivery by courier shall be regarded as delivery by hand.
22.4.2 Notices (other than notices sent via email) shall be sent to the registered office or principal place of business in the United Kingdom (if any) of the relevant party to this Agreement.
22.4.3 A notice shall be deemed to have been served if:
- delivered by hand at the address referred to in clause 22.4.2, at the time of delivery;
- sent by first class pre-paid post to the address provided for by clause 22.4.2, at the expiration of two (2) Business Days after the time of posting;
- sent by airmail, to the address provided for by clause 22.4.2, at the expiration of seven (7) Business Days after the time of posting; or
- sent by email (with receipt confirmed), immediately, except that if the email produces an automated response reporting a failure to deliver, delayed delivery to the intended recipient, or an “out of office” (or similar) notification, the notice shall not be taken to have been served.
22.4.4 If a notice would otherwise be deemed to have been delivered outside working hours (being 9.00 am to 5.00 pm) on a Business Day under the preceding provisions of this clause, it shall be deemed to have been delivered at the opening of such normal working hours on the next Business Day.
22.4.5 In proving service of the notice, it shall be sufficient to show that delivery by hand was made or that the envelope containing the notice was properly addressed and posted in accordance with this clause.
22.4.6 A party may notify the other of a change to its name, relevant person, address, or email address for the purposes of this clause, provided that such notification shall only be effective on:
- the date specified in the notification as the date on which the change is to take place; or
- if no date is specified or the date specified is less than five (5) Business Days after the date on which notice is deemed to have been served, the date falling five (5) Business Days after notice of any such change is deemed to have been given.
22.4.7 For the avoidance of doubt, the parties agree that the provisions of this clause shall not apply in relation to the service of any claim form, application notice, order, judgment or other document relating to or in connection with any proceedings.
22.7 Interception of communications
22.8 Assignment and sub-contracting
22.8.1 The Customer shall not without the prior written consent of Encompass assign, transfer, charge, dispose of, deal with or sub-contract its rights or obligations under this Agreement.
22.8.2 Encompass may assign its rights under this Agreement, including the right to receive the whole or part of the Charges.
22.9.1 Subject to clause 22.9.2, Encompass is entitled from time to time to amend this Encompass Customer Services Agreement and any such amendment shall take effect from the date on which the revised form of the document is first made available for inspection by Encompass at www.encompasscorporation.com/customer-service-agreement.
22.9.2 Encompass may not amend this Encompass Customer Services Agreement where and to the extent the amendment would change the Order Form, the provisions of clauses 14.2 (Infringement), 18 (Limitation of Liability), or in any other way entitle Encompass to render no performance at all under this Agreement or performance substantially different than that which ought reasonably to be expected by the Customer.
23. Governing law
This Agreement, and any non-contractual obligations arising in connection with this Agreement, shall be governed by and construed in accordance with English law.
The courts of England and Wales have non-exclusive jurisdiction to hear and determine any suit, action, or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement.
25. Address for service
Where the Customer is incorporated or established in any jurisdiction other than England and Wales or Scotland, as soon as reasonably practicable after being requested to do so by Encompass, the Customer shall irrevocably appoint an agent for service of process in England and Wales or Scotland.
Schedule 1 – Interpretation
In this Agreement, unless the context otherwise requires, capitalised expressions in the body of the Agreement have the meaning given to them, and the following definitions apply:
Additional Terms has the meaning given to it in clause 4.2.1.
Affiliate means in relation to a party, any person who controls, is controlled by, or is under common control with, that party, and control means the beneficial ownership of more than fifty percent (50%) of the issued share capital of, or the legal power to direct or cause the direction of, the person in question (or its holding company as the case may be), and controlled shall be construed accordingly.
Agreement means, in the case of an Order Form, this Encompass Customer Services Agreement, the Service Levels, and the Order Form, and in any other circumstances in which the Encompass Service is used by any End User, the body of this document and the Schedules as applicable to the Encompass Service used from time to time by the End User.
Business Day means Monday to Friday excluding public and bank holidays in the United Kingdom.
Charges means the fees set out in the Order Form and all costs in respect of Data (if any) for which Encompass is liable (as between the parties).
Cloud Services means services supporting the Encompass Platform, including by way of platform-as-a-service or infrastructure-as-a-service (as those expressions are defined by The National Institute of Standards and Technology in the USA or any replacement body).
Commencement Date means the meaning given to it on the Order Form or, if earlier, shall be the date on which an End User first uses the Encompass Service.
Confidential Information means in relation to a party or its Affiliates, the terms of this Agreement, and all other information and trade secrets relating to that party’s or its Affiliates’ business or customers which come into the possession of the other party or its Affiliates pursuant to this Agreement, whether orally, or in documentary, electronic or other forms, including all such information held by the other as of the Commencement Date including, in the case of Encompass, the Encompass Platform and the form in which Data are visualised or presented on the Encompass Platform from time to time, and in the case of the Customer, the Customer Data.
Customer means the person identified as such on the Order Form, and in any other circumstances the person whom the individual, who accesses the Encompass Service with the consent of Encompass, represents.
Customer Data means all information and data provided by the Customer or its Affiliates to Encompass for the purposes of use of the Services, the Encompass Materials and (to the extent different) Relevant Personal Data.
Data means all or any data put into circulation by a Data Provider from time to time and accessible or accessed (as the case may be) by means of use of the Encompass Service.
Data Protection Event means accidental, unauthorised or unlawful processing of, access to, loss of or damage to personal data.
Data Protection Legislation means Regulations relating to the processing of personal data in the course of the provision (in the case of Encompass) and the use (in the case of the Customer and its Affiliates) of the Encompass Service under this Agreement.
Data Protection Termination Event means any of the following, namely: (i) the Customer does not consent to the appointment of any Sub-processor under clause 16.7.4; (ii) an instruction from the Customer under clause 16.3.1 is necessary to enable the Customer to meet mandatory legal requirements and a Sub-processor is not able to accommodate the requested changes, or (iii) Encompass cannot comply with this Agreement in relation to the processing of Relevant Personal Data due to terms having effect between Encompass and its Sub-processors (other than Affiliates of Encompass) or the cessation of services provided by the Sub-processor (other than due to the act or omission of Encompass or its Affiliates).
Data Provider means a provider of data identified in schedule 1 (Data) to the Order Form.
Encompass Customer Services Agreement means the body of this document and the Schedules.
Encompass Materials means any or all Data obtained by the Customer or its Affiliates (as appropriate) through use of the Encompass Service in accordance with this Agreement in the form processed by the Customer or its Affiliates (as appropriate) using the Encompass Platform.
Encompass Platform means the proprietary web-based application, including application programming interfaces, owned by Encompass which consolidates corporate, personal, property, asset and other data sets from certain public and private sources, in such form as Encompass releases from time to time.
Encompass Service means access to the Encompass Platform and the Data.
End User means an employee of the Customer, or other representative of the Customer, who has been duly approved by Encompass, and who has access from time to time to the Encompass Service.
Insolvency Event means each and any of the following in relation to a party (a) any action (corporate or otherwise), legal proceedings or other procedure or step taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a party; (ii) the appointment of a liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of a party or any of its assets; (iii) the enforcement of any security over any assets of a party; or (iv) the attachment, sequestration, distraining upon or execution over or affecting any material asset of a party, which in any case is not withdrawn or dismissed as soon as reasonably practicable; (b) the party is unable to pay its debts as they fall due or is insolvent, or the other party perceives (acting reasonably) that to be the case; (c) party enters into a composition or arrangement with any creditor, or its creditors or any class of them.
Intellectual Property Rights means any and all patents, trade marks, business names, copyright, moral rights, database rights, rights in designs, rights in inventions, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting anywhere in the world and including all applications and rights to apply for any of them together with all or any associated goodwill.
Loss includes all or any loss, damage, cost and expense.
Order Form means a written request by the Customer (in terms agreed with Encompass) for the provision by Encompass of the Services in such form as Encompass may require, which is executed by Encompass and the Customer.
Product Delivery Schedule means schedule 2 (Platform Deliver Schedule) to the Order Form.
Policies means the policies and procedures of the Customer and its Affiliates (or any of them) in relation to anti-money laundering, counter-terrorism financing, and due diligence agreed between the parties in writing, and which are supported by the Encompass Platform as an outcome of the Professional Services, and, in the absence of agreement in writing between the parties, the standard functionality of the Encompass Platform supporting anti-money laundering, counter-terrorism financing and due diligence processes and procedures (or any of them);
Professional Services means the services described in the Product Delivery Schedule.
Professional Services Terms means the terms set out in Schedule 2 (Professional Services Terms).
Regulations means all legislation, and all rules or regulations of any kind, including orders, instructions or directions of a competent authority, and all related official guidance, whether enacted or enforced by any competent authority.
Relevant Personal Data means personal data of the kind described in Schedule 3 (Relevant Personal Data) which are processed by the Customer or its Affiliates (as appropriate) in the course of using the Services.
Relevant Personnel means representatives and personnel of Encompass who have access to Relevant Personal Data.
Security Information means the log-in details, private keys or passwords or other access controls used in connection with the Encompass Service to access the Encompass Service.
Service Levels means, in relation to the Encompass Service, the service levels adoped by Encompass from time to time, a copy of which is available on request.
Services means the Professional Services and the Encompass Service, or any of them.
Sub-processor means any legal or natural person proposed to be authorised or authorised (as appropriate) to process Relevant Personal Data from time to time, including a sub-contractor of Encompass and any other third party which is a party to a contract under which such processing is authorised to take place.
Virus means any code or data designed or adapted to impair or otherwise adversely affect the operation of any computer or equipment, prevent or hinder access to any program or data (whether by rearranging the same within the computer or equipment or any storage medium or device, or by altering or erasing the program of data in whole or part, otherwise), including computer viruses and other similar things.
In this Agreement:
2.1 references to:
2.1.1 words and phrases that are defined in Regulations shall have the meaning in the Regulations, and personal data, processing, disclosure, controller, and processor have the meaning in Data Protection Legislation;
2.1.2 the Schedules are to the schedules to the body of this document;
2.1.3 a statutory provision includes a reference to any modification, consolidation, or re-enactment of the provision from time to time in force, and all subordinate instruments, orders or regulations made under it;
2.1.4 either party includes, where appropriate, persons deriving title under it;
2.1.5 subsidiary and holding company have the meanings given to them by section 1159 of the Companies Act 2006;
2.1.6 includes or including shall be construed as without limiting the generality of the preceding words;
2.1.7 indemnify means on demand to indemnify and keep indemnified, and hold harmless, the party to be indemnified on an after-tax basis;
2.1.8 any document (including this Agreement) or a provision of it shall be construed as a reference to that document or provision as amended from time to time by agreement between the parties in accordance with this Agreement;
2.1.9 writing includes any method of reproducing words in a legible and non-transitory form, including e-mail; and
2.1.10 rights include the rights and remedies of the party in question;
2.2 the singular includes the plural and vice versa; and
2.3 the headings are for convenience only, and do not affect the interpretation of this Agreement.
3. Customer Affiliates
The Customer is liable for the acts and omission of its Affiliates as if they were its own, and each obligation of the Customer under this Agreement, and any reference to an act or omission of the Customer, unless the context otherwise requires, includes (in the case of the former) an obligation to procure that the obligation (where necessary) is performed by an Affiliate of the Customer, and (in the case of the latter) any act or omission of an Affiliate of the Customer.
Schedule 2 – Professional Services Terms
1. Supply of Professional Services
1.1 The allocation between the parties of responsibility for the tasks required in connection with the Professional Services and the times for their performance that are known at the Commencement Date are described in this clause and more particularly in the Project Delivery Schedule, and a party’s responsibilities are deemed to include all other tasks that are reasonably incidental to the performance of the tasks so allocated.
1.2 Encompass’ responsibilities in relation to the Professional Services include the following:
1.2.1 establishing the project teams and governance framework;
1.2.2 preparation of a project initiation document that outlines key activities, timelines and milestones and identifies key personnel;
1.2.3 organising and attending workshops;
1.2.4 support policy definition and design;
1.2.5 where appropriate, providing API specifications to the Encompass Platform and the support described in the Project Delivery Schedule to assist the Customer integrate its applications and the systems of Data Providers identified in the Project Delivery Schedule with the Encompass Platform to create a single point of access;
1.2.6 provide training to be agreed with the Customer for testing and ongoing usage; and
1.2.7 enable to access the Encompass Service.
2.1 The parties shall co-operate in any reasonable arrangements relating to the timely undertaking of the Professional Services and shall provide such information and assistance as the other may require (acting reasonably) in relation to discharging their responsibilities.
2.2 Encompass shall have the right and duty to manage all tasks required to be undertaken for the purposes of, or in connection with, the Professional Services.
2.3 The parties shall undertake their respective responsibilities under the project plans prepared by Encompass and otherwise the Professional Services shall be undertaken and completed within a reasonable time.
2.4 Encompass is discharged in whole or part from performing the Professional Services under this paragraph and in accordance with clause 22.2 (Force majeure).
2.5 Encompass is discharged from its obligations (but only to the extent and for so long as the relevant circumstances affect Encompass’ performance) where any of the following applies (Relief Event):
2.5.1 the responsibilities of the Customer and the actions and events in relation to the Professional Services which need to be performed or (as the case may be) to occur, or not to occur, for Encompass to perform the Professional Services that are identified in the Project Delivery Schedule are not met other than due to any act or omission of Encompass or its sub-contractors;
2.5.2 information or data provided by or on behalf of the Customer is inaccurate, incomplete, or misleading, or is not provided in accordance with agreed timescales or otherwise timeously after receipt of a request from Encompass;
2.5.3 the Customer omits to inform Encompass of any modification to or replacement of any agreement to which the Customer or any of its Affiliates is a party that is relevant to the provision of the Professional Services, or does not do so in accordance with agreed timescales or otherwise timeously after receipt of a request from Encompass; or
2.5.4 the Customer is in breach of this Agreement or otherwise does not discharge its responsibilities in relation to or in connection with the Professional Services according to agreed timescales or otherwise within a reasonable time.
2.6 Where a Relief Event applies for any reason other than any act or omission of Encompass or sub- contractors, the Customer shall indemnify Encompass in respect of any incremental costs and expenses incurred by it in performing its obligations under this Agreement, including costs (calculated in accordance with the rates set out in the Project Delivery Schedule) in respect of personnel who are ready and willing to perform tasks allocated to Encompass as part of the Professional Services but who have been prevented, hindered or delayed by the Relief Event.
3. Completion of the Performance
3.1 Encompass shall demonstrate to the Customer (acting reasonably) that the Professional Services have been completed in accordance with the Project Delivery Schedule, including by way of tests that the parties agree in writing.
3.2 The Customer must not unreasonably withhold confirmation that the Professional Services have been completed in accordance with the Project Delivery Schedule and shall notify Encompass promptly on becoming aware of any errors or insufficiencies in the implementation of the Encompass Platform in sufficient detail to enable Encompass to replicate the error or insufficiency.
3.3 Upon receipt of a notice under paragraph 3.2, Encompass shall use reasonable endeavours to correct the errors or insufficiencies so that the Encompass Service is ready for use.
3.4 The Encompass Service shall be ready for use on the earlier to occur of the following:
3.4.1 the rectification of the errors or insufficiencies (if any) by Encompass; and
3.4.2 the expiry of ten (10) Business Days after completion of the implementation of the Encompass Platform, if the Customer has not by the end of that period notified Encompass of any errors or insufficiencies in the Encompass Platform.
4.1. The Customer shall appoint as Contract Manager, and Encompass shall appoint as Service Manager, a senior employee with relevant experience to have day to day responsibility for the appointing party’s responsibilities in relation to the Professional Services, and each party shall appoint a nominee to deputise for the appointee in their absence; each party undertakes to the other to procure that its appointee (or their deputy) complies with their responsibilities.
4.2 The Contract Manager and the Service Manager will meet (each being a Review Meeting) as often as may reasonably be necessary to ensure the continuous, efficient, and timely implementation of the Professional Services.
4.3 A party calling a Review Meeting will provide reasonable advance notice of the timing and agenda of the Review Meeting, and the location at, or manner, in which the Review Meeting may be held.
4.4 Minutes of Review Meetings shall be kept by Encompass and agreed with the Customer; draft minutes shall be submitted by Encompass within five (5) Business Days after the meeting.
4.5 The Contract Manager, the Service Manager, and their deputies are authorised representatives of the Customer and Encompass respectively and are empowered to act on behalf of them except to the extent specified in this Agreement; other than in the case of a notice under clause 22.4 (Notices), any notice, information, instruction or other communication given or made to either of them for the purposes of or in connection with the Professional Services is deemed to have been given or made to the Customer or Encompass (as appropriate).
4.6 The Contract Manager and the Service Manager have no right or authority to agree amendments, modifications, or variations to this Agreement in relation to the Professional Services if they may affect the Product Delivery Schedule, all such matters being reserved to the Contract Director and the Service Director.
4.7 The Customer shall appoint as Contract Director and Encompass shall appoint as Service Director an individual with appropriate authority levels to have responsibility for the Professional Services; each party undertakes to the other to procure that its appointee (or his or her deputy) complies with his or her responsibilities under this Agreement in relation to the Professional Services.
4.8 The Contract Director and the Service Director will meet at any time upon either party giving to the other at least five (5) Business Days’ notice, the agenda for the meeting to be prepared by the party requesting the meeting and provided with the notice.
4.9 Minutes of meetings between the Contract Director and the Service Director will be kept by Encompass and agreed with the Customer; draft minutes shall be submitted by Encompass within five (5) Business Days after the meeting.
5.1 Encompass is responsible for all payments due to, or to third parties in respect of, personnel engaged in providing the Professional Services (Consultants), including (where appropriate) payment of salary, benefits and expenses, and remittance to the appropriate authorities of all required income tax and national insurance contributions.
5.2 Encompass shall ensure that the Consultants are appropriately qualified, skilled, and experienced to undertake the tasks assigned to them.
6. Change control
6.1 Change requests
6.1.1 The Customer may at any time request, and Encompass may at any time recommend, changes to the Professional Services (Project Changes), which shall be dealt with in accordance with paragraph 6.2 (Procedure).
6.1.2 Neither the Customer nor Encompass shall unreasonably withhold or delay its agreement to any Project Change.
6.1.3 Until a Project Change is agreed in writing by the parties in accordance with this Schedule, this Agreement shall remain in effect as if the request or recommendation had not been made.
6.2.1 Where the Customer wishes to request a Project Change, the Customer shall send a written request to Encompass and a draft change request in such form as Encompass may require (acting reasonably) (CR) shall be submitted by Encompass to the Customer as soon as reasonably practicable after receipt of the request.
6.2.2 Where Encompass wishes to recommend a Project Change it shall submit a draft CR directly to the Customer.
6.2.3 For each CR submitted to the Customer, the Customer shall, within the period of the validity of the CR evaluate the CR and (as appropriate) request further information, notify Encompass of the rejection of the CR and the reasons for it, or approve the CR and arrange for two copies to be signed by or on behalf of the Customer and Encompass.
6.2.4 A CR signed by or on behalf of both parties shall constitute an amendment to the Agreement.
6.3.1 Where the Customer does not communicate its approval or rejection of a CR, or notify Encompass that it requires more time, within twenty (20) Business Days’ after receipt of a CR, the CR shall be deemed to be rejected.
6.3.2 Where the Customer notifies Encompass that it requires more time to consider a CR, it shall have a further period of twenty (20) Business Days in which to consider the CR and the provisions of this paragraph shall be repeated.
Schedule 3 – Relevant Personal Data
1. Nature and purpose of the processing
All processing as may be required in order to support:
1.1 the anti-money laundering (AML) and counter-terrorism financing (CTM) policies and procedures of the Customer and its Affiliates; and
1.2 any form of due diligence relating to an actual or prospective counterparty to any dealings with the Customer or any of its Affiliates (Due Diligence).
2. Type of personal data
Any or all information relating to a person which is required (as determined by the Customer or its Affiliates) for the Customer or its Affiliates to comply with Regulations and best practices relating to AML and CTM, to conduct Due Diligence, and such other purposes as may be agreed between the parties from time to time.
3. Categories of data subjects
Individuals who are past, present or potential clients or customers of the Customer or any of its Affiliates, or who may be officers, shareholders, or employees of those clients or customers, or who may in any way be connected with those clients or customers.
Schedule 4 – Data Provider Terms
Where an End User accesses Data provided by the following Data Providers in the course of its use of the Encompass Service, the Additional Terms for the purposes of clause 4.2.1 shall be the provisions set out in this Schedule which are identified under the name of the Data Provider forming the heading of the relevant section.
1. Dun & Bradstreet Limited
The following additional definitions shall apply in this paragraph:
We means Dun & Bradstreet Limited and cognate expressions shall be construed accordingly.
1.2 Restrictions on Use
1.2.2 End User shall not request or make available Information for the use of others, including for any parent, subsidiary, affiliated entity, franchisee or dealer of End User. End User shall not make Information available to others in any form, unless required by law where End User has notified us or unless End User first obtains our written consent.
1.2.3 End User shall not use Information in connection with providing advice or recommendations to others, publish Information in the news media, incorporate or use Information in any kind of database or marketing list to be provided to a third party, use Information to generate any statistical or other information that is or will be provided to third parties, use or permit the use of Information to prepare any comparison to other information databases that will be provided to third parties, or produce Information in judicial or administrative proceedings, including discovery proceedings, without our prior written consent, unless required by law and where End User has notified us of such legal requirement.
1.2.4 End User may use Information only in connection with the particular transaction for which such Information was originally requested. End User shall not re-license, resell or further distribute Information.
End User shall not copy, download, batch harvest, upload or in any other way reproduce the Information for the purpose of aggregating the Information (other than in the normal course of using the Encompass service or similar), save that End User may create a copy or backup of the Information for the purpose of maintaining an internal archive or for regulatory compliance. Such backup or archive shall not be used for any commercial purpose.
1.4 Compliance with Laws
1.4.1 End User will not use Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. In addition, End User will not use Information to engage in any unfair, anti-competitive or deceptive practices and will use the Information only in compliance with applicable laws or regulations, including laws and regulations regarding telemarketing, customer solicitation (including fax and/or e-mail solicitation), data protection, privacy and anti-corruption.
1.4.2 In relation to personal data contained in the Information, End User undertakes to comply with the following obligations: (i) to use such personal data only for internal business use in connection with the particular transaction for which the Information was originally requested; (ii) to process such data in accordance with the EU General Data Protection Regulation 2016/679 (“the GDPR”) and the EU Privacy & Electronic Communications Directive 2002/58/EC as implemented, and any amendments and replacement legislation including European Commission decisions, binding EU and national guidance and all national implementing legislation (“Privacy Laws”).
1.5 Limitation of Liability
1.5.1 END USER AGREES THAT IN NO EVENT SHALL WE (OR OUR AFFILIATES) BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND OR CHARACTER (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF THE USE OF THE INFORMATION, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES ARISING OUT OF ANY CREDIT DECISIONS MADE, ANY LOSS OF PROFIT, SAVING OR GOODWILL, AND ANY LOSS OR DAMAGE ARISING OUT OF THE CONDUCT OF THIRD PARTIES.
1.5.2. IN NO EVENT SHALL OUR LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT WE RECEIVED FOR THE PARTICULAR INFORMATION PROVIDED TO END USER THAT IS THE SUBJECT OF THE CLAIM OR (II) A SUM EQUIVALENT TO GBP£20,000.
1.6 Disclaimer of Warranties
1.6.1. Though we use extensive procedures to keep its database current and to maintain accurate data, End User acknowledges that the Information will contain a degree of error. End User accepts that it (i) is responsible for determining whether the Information is sufficient for End User’s use and (ii) must rely entirely upon its own skill and judgment when using the Information.
1.6.2 ALL INFORMATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. SAVE AS OTHERWISE STATED IN THESE TERMS, WE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, OUR CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING OR REPORTING INFORMATION.
1.7 Intellectual Property
1.8 Data Privacy
1.8.1 In this clause “controller”, “processor”, “data subject”, “personal data” and to “process” have the meanings given to them in the Privacy Laws.
1.8.2 End User acknowledges that the Information may contain personal data, and in relation to the handling and use of such personal data, End User is acting as controller of such personal data once it is in the End User’s possession.
1.8.3 End User will ensure that appropriate technical measures (including the use of encryption) and organizational measures are taken to avoid unauthorized or unlawful processing of, and against accidental loss or destruction of or damage to, personal data (including adequate back-up and disaster recovery systems) within the Information
1.8.4 End User will not transfer personal data within the Information, to any country outside of the EEA unless End User has (where required) adopted an appropriate EU transfer mechanism in accordance with the GDPR (controller to controller, or controller to processor as applicable)
1.8.5 End User will promptly carry out any request from us requiring it to amend, transfer or delete all or any personal data within the Information
1.8.6 End User will take reasonable steps to ensure the reliability of any employees who have access to personal data, including ensuring that all such employees have received training in applicable Privacy Laws. End User will limit access to such personal data (including when in a test environment) to those of its employees who have a business need for access.
1.8.7 End User will notify us promptly if it receives any enquiry or complaint from a local data protection regulator or data subject about any personal data within the Information, as applicable. End User will co-operate with us to ensure the prompt investigation of, and response to, any such enquiry or complaint.
1.8.8 If End User becomes aware of the loss or compromise of, or any damage to, any personal data within the Information it will:
- promptly notify us of the details of the incident;
- promptly initiate a full investigation into the circumstances surrounding the incident and make any reports of notes of the investigation available to us; and
- provide such reasonable cooperation and assistance as may be requested by us in order to investigate the incident.
1.10.3 This Agreement is governed by and construed in accordance with the laws of England and both parties irrevocably submit to the exclusive jurisdiction of the English Courts.
1.10.5 Upon expiry or termination of the Term with respect to the Information, End User shall immediately delete, destroy or return all originals and copies of any Information, unless End User is otherwise instructed by us; and upon request, shall provide us with written certification thereof. This provision shall not apply to the archival copies of the Information as permitted in paragraph 1.3 (Copying) above.
2. European Business Register terms
|Data||official and public business register data, as this is defined by the ISA Participant for the purpose of these terms, obtained by each ISA Participant from the Business Register Authorities of his jurisdiction. In these terms this means the information or data held within the databases of:
|Databases||of The National Registers listed at a-h above.|
|Distributor||a distributor outside of the ISA cooperation, to whom a distributing ISA Participant supplies the Data obtained through the ISA cooperation for the purpose of resale, using its own sales or supply agreement.|
|EBRA Parties||the administrative agencies of various countries who are responsible for the registration of enterprises and for the maintenance of registry data whose organisations subsequently form the EBR.|
|EBR||means European Business Register.|
|EBR Inquiry System||the electronic query system of the EBR.|
|EBR Network||means the service through which the EBR Products or strictly national products are requested, delivered and retrieved.|
|EBR Products||means aggregated Data, originating from the Databases listed at a-h above structured in:
|End User||the final consumer of the Data provided through the ISA cooperation, regardless of whether this consumption is done for the personal purposes of the End User or as an instrument in his business activities; in this case the Customer.|
|Information Distributor||a body which has the official mandate from the Information Owner, should this be a separate entity, to distribute the Data originating from the Information Owner and supplied by the Provider to the ISA Cooperation or to the market.|
|Information Owner||the official public body which is formally responsible for the collection and registration of information related to the Business Register within a jurisdiction participating to the ISA Cooperation.|
|ISA Agreement or Information Sharing Agreement||being the document setting out the terms upon which ISA Participants must use when accessing and providing Data. The ISA Agreement is established with the object of managing the cooperation between the ISA Participants within an electronic network (for the purpose of the ISA Agreement and these terms defined as the “ISA Cooperation” or the “Cooperation” or “Network”) set up with the intention to facilitate exchange of information collected by each ISA Participant from the Business Register Authorities of its jurisdiction. Through the ISA Agreement each ISA Participant undertakes the obligation to participate and contribute to the existing Cooperation and its future development under the guiding principle of achieving greatest possible value for the End User.|
|ISA Participant||the Information Owner, Provider or Information Distributor appointed by each jurisdiction as the national representative to the ISA Cooperation, hence responsible for the supply of Data to the other ISA Participants in the ISA cooperation. Should it be legally, technically and administratively possible for more than one organisation to provide the Data to the ISA Cooperation, the national authority in charge will have the right to decide which organisation that shall represent its jurisdiction as the ISA Participant, should this not counteract nor complicate the object of the Cooperation. There can be only one ISA Participant per country, unless otherwise agreed by way of exception by all ISA Participants on a case-by-case basis.|
|National Sales Conditions||the National Sales Conditions of the EBRA Parties as shall be amended from time to time.|
|Provider(s)||a body which has the official mandate from the Information Owner, should this be a separate entity, to process its Data and to provide it to the market, to the ISA Cooperation or to the Information Distributor via an available service allowing access to its online database. In these terms this means Data from one of the national Databases listed at a-h above.|
|RIK||the Centre of Registers and Information Systems.|
Where there is any conflict or inconsistency between any other provision of this Agreement and these terms, these terms prevail in relation to the use of the Data to the extent of the conflict or inconsistency.
The End User shall have the right to use the Data in accordance with the National Sales Conditions as more particularly set out below at paragraphs 2.3 to 2.6.
2.3 Grant of License
2.3.1 The End User receives a non-exclusive usage right to access the database and the data. This right is strictly personal to the End User and the Data is supplied to the End User for internal use only. Under no circumstances may retrieved Data be communicated, duplicated, redistributed, incorporated, modified or altered in any manner by the End User free of charge or not.
2.3.2 The End User confirms that it shall use the Data obtained in accordance with this Agreement and these terms and in compliance with all valid legislation, in good faith and refraining from prejudiced action against RIK, EBRA Parties or third parties. The End User is prohibited from using the EBR Inquiry System or Data for the purpose of committing an offence.
2.3.3 The End User is obliged to treat the Data supplied in such a way that the integrity of any person registered in any of the databases comprised by these conditions is protected in accordance with applicable data protection law.
2.3.4 The End User is prohibited from conducting any activities which could jeopardise the security of the EBR Inquiry System.
2.3.5 The following are expressly prohibited:
- The retrieval by the End User by temporary or permanent transfer of the totality or a qualitatively or quantitatively substantial part of the database’s content, whatever the means or the format;
- When purchasing Data from Belgium or France: the retrieval or the systematically repeated re-use by the End User of a qualitatively or quantitatively non-substantial part of the database’s content.
2.3.6 When purchasing Data coming from Latvia: The information can only be used in accordance with copyright and private data protection laws.
2.3.7 RIK shall have the right to monitor use of the EBR Inquiry System by the End User and issue letters of inquiry with mandatory execution about the lawfulness of the usage of the EBR Inquiry System.
2.4 Access to the Data
2.4.1 The End User has full responsibility to take all necessary measures to access the Data, mainly by using an adapted technical configuration and to protect himself against intrusion or virus contamination.
2.4.2 The End User will access the EBR Inquiry System via the Internet. Under no circumstances, shall the Provider(s) be liable for any technical inability to access the service which may arise, whether as a result of telephone failure, internet service provider failure or shortage of power or a problem originating in the End User’s technical configuration.
2.4.3 The End User is fully responsible in respect of requests made by him to the Provider for Data and in respect of the usage which it makes of the Data obtained as a result of those requests.
2.4.4 The End User has full responsibility for the Data retrieval operations.
2.4.5 The Providers reserve the right to restrict the access to their respective Databases in the event of unlawful use of the Data or restrictions impelled by legislation, governmental or administrative order.
2.4.6 When accessing Data from the Swedish National Business Register, the End Users are obliged to conform to 2.4.2 only.
2.5 Liability of Providers
2.5.1 The Providers will be liable according to the relevant statutory legal provisions for any damages that are caused by a deliberate or grossly negligent act.
2.5.2 The liability of the Providers shall be limited to the maximum degree of damage which has to be expected as for the kind of contracts herewith negotiated in the case of a fundamental breach of their contractual duties.
2.5.3 Under no circumstances shall the Providers be liable for any express or implied duty to achieve a given result.
2.5.4 When purchasing Data coming from Belgium, Finland, France, Latvia and Slovenia, under no circumstances shall the Providers be liable to the End User for any loss or damage, whatever its nature (in particular a loss of business, a data loss or other financial loss) resulting from the use of the tools provided by the EBR Inquiry System and the Providers, in connection with the supply of Data to the End User via the EBR Inquiry System.
2.5.5 The Data supplied to the End User might be indicative only and furthermore uncertified depending on the legislation in the country in which the Database is established.
2.5.6 Therefore, the End User will notice that:
- French Data supplied to the End User is, according to French legislation, indicative only. The Data supplied is uncertified, and the End User is hereby on notice that only written hard copies supplied by INPI or by the Greffes des Tribunaux de Commerce (local French Business Registers from the Commercial Courts), duly certified by those bodies, have a legal value.
- Data supplied by Lursoft IT is also indicative only.
2.5.7 The End User is liable to the Provider for any damage caused in relation to any non-authorised communication, duplication, redistribution in violation of the provisions stated in the ISA Agreement or these terms, incorporation, modification or alteration of the Data, as this is stated within the ISA Agreement or in these terms, including, but not limited to, fault or negligence on the part of the End User.
2.5.8 A claim for compensation against Providers emerging from the providing of incorrect Data shall be settled in accordance with Article 10 in the ISA Agreement. The End User is liable to the Provider for any damage caused in relation to a breach of this paragraph.
2.5.9 Any further liability of the Providers is excluded.
2.6 Governing law
The provisions of this paragraph 2 shall be governed and interpreted in compliance with the laws of the Republic of Estonia.
Terms updated 01 March 2021