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Hatch terms and conditions

  1. Definitions

    In this Agreement:

    1. the following terms shall have the following meanings unless the context requires otherwise:

      Acceptance: the acceptance or deemed acceptance of Hatch by the Customer pursuant to clause 4.

      Acceptance Tests: the tests of Hatch, as agreed between the parties in writing from time to time, to be carried out following KD's supply of the Development Services.

      Agreement: this agreement signed by the parties, made up of the Order Form and these Terms and Conditions.

      Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

      KD: Karman Digital, which is a trading style of ClientsFirst Limited. We are a company incorporated in England and Wales with registered number 07143834 whose registered office is at 97 Alderley Road, Wilmslow, Cheshire, SK9 1PT;

      KD API: any application programming interface, developed, owned or operated by KD, which the Customer has access to as part of its receipt of the Services.

      KD API Data: any content images, photographs, illustrations, icons, texts, video, audio, written materials, software or other content, materials or data that the Customer accesses or uses via the KD API.

      Commencement Date: has the meaning given to it in clause 2.4.

      Confidential Information: any information in any form or medium obtained by or on behalf of either party from or on behalf of the other party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it.

      Confirmation Email: the email sent by, or on behalf of, KD following its receipt of the Order Form submitted by the Customer, which shall confirm the Customer's purchase of the Services and act as KD's acceptance to provide the Services on the basis of the terms set out in the Order Form and these Terms and Conditions.

      Controller: has the meaning given to it in Data Protection Legislation.

      Controlling Party: has the meaning given to it in clause 11.8.

      Customer Branding: (a) any of the Customer's trade marks, trade names, service marks, trade dress, logos, URLs and domain names;
      (b) any of the Customer's identifying slogans and symbols; and
      (c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b);
      that the Customer wishes KD to display on Hatch from time to time, whether or not registered.

      Customer Content: any content, document, template, information, images, text, or data provided by the Customer to KD that the Customer wishes to be incorporated into Hatch and make accessible to End Users.

      Data Protection Legislation: all applicable data protection and privacy legislation, regulations and guidance including: Regulation (EU) 2016/679 (the General Data Protection Regulation or GDPR) and the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations and any guidance or codes of practice issued by the European Data Protection Board or Information Commissioner's Office from time to time (all as amended, updated or re-enacted from time to time).

      Development Fees: the fees payable by the Customer to KD in consideration of KD's provision of the Development Services, as set out in the Order Form.

      Development Services: has the meaning given to it in the Order Form.

      Effective Date: the date of Acceptance.

      End User: any person that accesses and uses Hatch including the employees, agents and independent contractors of the Customer who are authorised by the Customer to use Hatch.

      Fees: the License Fees and/or the Development Fees, as appropriate.

      Hatch: the cloud-based platform, bespoked by KD as part of the Services, which shall be operated by KD and shall incorporate the third party software set out in the Order, the Customer Branding and the Customer Content.

      Minimum Term: the period of time set out in the Order Form that begins on the Commencement Date.

      Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.

      Licence Fees: the fees payable by the Customer to KD in consideration of KD's provision of the Subscription Services, as set out in the Order Form;

      Non-KD Defect: has the meaning given to it in clause 4.5.

      Order Form: the written document containing specific information relating to the particular services to be provided by KD to the Customer and the Fees to be paid by the Customer to KD.

      Personal Data: has the meaning given to it in Data Protection Legislation.

      Personal Data Breach: has the meaning given to it in Data Protection Legislation.

      Processing: has the meaning given to it in Data Protection Legislation and Process shall be interpreted accordingly.

      Processing Party: has the meaning given to it in clause 11.8.

      Services: has the meaning given to it in clause 3.1.

      Specification: the specification for Hatch, agreed in writing between the parties from time to time.

      Subscription Services: has the meaning given to it in clause 3.4;

      Support Services: has the meaning given to it in the Order Form.

      Term: the duration of this Agreement, commencing on the Commencement Date and expiring upon the termination of this Agreement.

      Third Party Fees: means the fees payable for access and use of the Third Party Software, as determined by the Third Party Software Provider from to time.

      Third Party Software: the software program owned by a third party, as set out in the Order Form, which forms the basis of, and/or is incorporated into, Hatch.

      Third Party Software Provider: means any third party who owns or operates Third Party Software, as set out in the Order Form.

    2. Clause headings shall not affect the interpretation of this Agreement.
    3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    4. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
    5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
    6. This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
    7. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
    8. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time.
    9. A reference to writing or written includes email.
    10. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    11. References to clauses are to the clauses of this Agreement.
    12. The Schedule forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedule.
  2. Basis of Agreement
    1. The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer in whatever form and at whatever time. These Terms and Conditions apply to all Services.
    2. Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations that are not expressly stated in this Agreement, except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
    3. This Agreement constitutes the whole agreement and understanding of the parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
    4. The Order Form shall be in the form that KD requires from time to time. This Agreement shall be legally formed, and the parties shall be legally bound when KD has sent the Confirmation Email to the Customer following KD's receipt of the Order Form submitted to it by the Customer (the Commencement Date). Submission to KD by the Customer of the Order Form shall be deemed to be an offer by the Customer to purchase Services (as specified in the Order Form) from KD, subject to the provisions of this Agreement, and the act of KD sending the Confirmation Email to the Customer shall be considered as KD's acceptance of such an offer, but the requirements for KD to perform any of its obligations under this Agreement shall be conditional upon its receipt from the Customer of any advance paymentof Fees as required under this Agreement.
    5. If the Customer provides to KD a purchase order for its receipt of Services, other than as set out in clause 2.4, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for the Customer's administrative purposes and shall not form part of this Agreement.
    6. In the event of a conflict between these Terms and Conditions and the Order Form, the Order Form shall prevail over these Terms and Conditions.
  3. Supply of Services
    1. KD shall:
      1. in return for the Customer's payment of the Development Fees (where applicable), provide the Development Services; and
      2. from the Effective Date, in return for the Customer's payment of the Licence Fees:
        1. provide the Subscription Services; and
        2. provide the Support Services; (collectively referred to as the Services).
    2. The Customer hereby grants to KD a non-exclusive, non-transferable right during the Term to use the Customer Branding and the Customer Content for the sole purpose of enabling KD to provide the Services to the Customer in accordance with this Agreement.
    3. The Customer acknowledges and agrees that KD and/or its licensors own all the Intellectual Property Rights in Hatch (except for the Customer Branding and the Customer Content), and in the results of the Services. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of Hatch (except for the Customer Branding and the Customer Content), or in the results of the Services.
    4. Subject to clause 3.18, KD shall grant to the Customer, from the Effective Date, a non-exclusive, non-transferable right, during the Term, to permit End Users to access Hatch (the Subscription Services).
    5. Use of Hatch by End Users shall be subject to KD's standard terms and conditions for use and KD reserves the right to restrict any End User's access to Hatch if it has not accepted, or complied with, such standard terms and conditions.
    6. In relation to the End Users:
      1. the Customer undertakes that the maximum number of End Users who shall be provided access to Hatch under this Agreement shall not exceed the number of End Users stipulated in the Order Form;
      2. it will not allow or suffer any End User's account to be used by more than one individual End User unless it has been reassigned in its entirety to another individual End User, in which case the prior End User shall no longer have any right to access or use Hatch;
      3. each End User shall keep a secure password for their use of Hatch and that each End User shall keep their password confidential; and
      4. it shall maintain a written and up to date list of current End Users and provide such list to KD within 5 (five) Business Days of KD's written request.
    7. The Customer shall not, and it shall procure that the End Users shall not, access, store, distribute or transmit any computer viruses, or any material during the course of its use of Hatch 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 KD reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's (or such End User's) access to any material that breaches the provisions of this clause.

    8. The Customer shall not:
      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
        1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Hatch in any form or media or by any means; or
        2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Hatch;
      2. access all or any part of Hatch in order to build a product or service which competes with the Services;
      3. use Hatch to provide services to third parties;
      4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make Hatch available to any third party except the End Users,
      5. attempt to obtain, or assist third parties in obtaining, access to Hatch; or
      6. introduce or permit the introduction of, any computer virus or any known or unknow computer vulnerability into the KD's network and information systems.
    9. The Customer shall use all reasonable endeavours in accordance with good industry practice to prevent any unauthorised access to, or use of, Hatch and, in the event of any such unauthorised access or use, promptly notify KD.
    10. The rights provided under this clause 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
    11. The Customer shall permit KD or the KD's designated auditor to audit the Subscription Services in order to monitor the Customer's use of the Subscriptions Services including its compliance with clause 3.6.
    12. If any audit carried out in accordance with clause 3.11 reveals that the Customer has underpaid the Licence Fees or that the number of End Users, as stipulated in the Order Form, has been exceeded then the Customer shall pay to KD an amount equal to such underpayment as calculated in accordance with charging mechanism set out in the Order Form.
    13. Subject to clause 3.14 and clause 3.14, the Customer may, from time to time during the Term using the functionality available within Hatch or by requesting directly from KD in writing, increase the number of End Users that may access the Subscription Services in excess of the number set out in the Order Form and KD shall use its reasonable endeavours to grant such a request.
    14. KD shall evaluate any request submitted in accordance with clause 3.13, and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). The Customer acknowledges and accepts that it shall also need to request such additional End User accounts directly from the Third Party Software Provider and KD's consent to any request submitted by the Customer to KD shall be conditional upon such additional End User accounts also being granted by the Third Party Software Provider. If KD approves the Customer's request to increase the number of End Users with access to Hatch, the Licence Fees shall be amended in accordance with the charging mechanism set out in the Order Form.
    15. KD does not warrant that use of Hatch will be uninterrupted, timely, error-free or secure from unauthorised access, or that it will meet the Customer's (or an End User's) individual requirements. Whilst KD will use its reasonable endeavours to make Hatch available, it shall not have any liability (subject to clause 12.1) if for any reason Hatch is unavailable for any time or for any period.
    16. KD, at no additional cost, shall maintain and support Hatch (save for any Third Party Software). If KD informs the Customer of any fault or failure in the operation of Hatch, KD will use its reasonable endeavours to respond to the Customer and resolve and rectify the fault or failure, to the extent that it is able, as soon as reasonably practicable.
    17. The Customer shall provide KD with all necessary access to such information as may be required by KD in order to provide the Services including access to and/or copies of the Customer Branding and the Customer Content.
    18. The Customer acknowledges and accepts that Hatch incorporates the Third Party Software. The Customer further acknowledges and accepts that it shall be required to enter into a separate agreement with the Third Party Software Provider, and that its access and use of Hatch shall be conditional upon the Customer having an active agreement in place with the Third Party Software Provider.
    19. The Customer shall, pursuant to clause 3.18, enter into an agreement with the Third Party Software Provider via the hyperlink set out in the Order Form.
    20. KD makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, the Third Party Software or any agreement entered into by the Customer, with the Third Party Software Provider. KD recommends that the Customer refers to the Third Party Software Provider's terms and conditions and privacy policy prior to entering into any agreement with such Third Party Software Provider pursuant to clause 3.18 and clause 3.19. KD does not endorse or approve any Third Party Software.
  4. Development and Acceptance of Hatch
    1. Once KD has completed the Development Services in respect of Hatch, the Customer shall run the Acceptance Tests.
    2. The Acceptance Tests shall test if Hatch materially complies with the Specification. The form and detail of such tests and the Specification shall be agreed by the parties in writing from time to time.
    3. Acceptance of Hatch shall be deemed to have occurred on the earliest of:
      1. the expiry of 5 (five) days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under clause 4.4;
      2. the expiry of 7 (seven) days after KD has notified the Customer that the Development Services have been completed; or
      3. the use of Hatch by the Customer (or any of its End Users) in the normal course of its days to day business.
    4. If Hatch fails to pass the Acceptance Tests, the Customer shall within 5 (five) Business Days from the completion of such Acceptance Tests notify KD of such failure in writing.
    5. If any failure to pass the Acceptance Tests results from a defect, which is caused by an act or omission of the Customer, a Third Party Software Provider, the Third Party Software, or by one of the Customer's sub-contractors or agents, for whom KD has no responsibility, (a Non-KD Defect), Hatch shall be deemed to have passed the Acceptance Tests, notwithstanding such Non-KD Defect.
  5. API Licence

    If the Order Form stipulates that the Customer may have access to any KD API as part of its receipt of the Services, the following clauses shall be applicable to this Agreement.

    1. KD grants to the Customer a royalty-free, non-exclusive, non-transferable and non-sublicensable licence to use the KD API for the Term;
    2. The Customer shall not use the KD API contrary to any restriction stated in this Agreement, or otherwise in a way that is not expressly permitted by this Agreement.
    3. Except to the extent such activities are expressly agreed by the parties in writing, the Customer:
      1. shall ensure that its use of the KD API is in accordance with:
        1. any relevant API policy; and
        2. all relevant legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency or other relevant body;
      2. must not use the KD API:
        1. to make any Personal Data or Confidential Information publicly available;
        2. in connection with a criminal offence under the applicable national laws or regulations or against public order or applicable ethical standards and codes;
        3. in any way which causes or is intended to cause annoyance, inconvenience or needless anxiety;
        4. for any unlawful purpose whatsoever, including fraud or terrorism;
        5. in any way which is abusive, harmful, threatening or defamatory or any other way that may cause offence;
        6. in any way that could be harmful to end-users' or the other party's systems or data (including uploading any material that otherwise contains a virus or other malicious code);
        7. in any way which breaches or could potentially breach a legal duty to a third-party (including a duty of confidentiality) or which infringes or could potentially infringe a person's right to privacy;
        8. in any way which promotes discrimination or is likely to incite hatred; and/or
        9. in any way which may infringe the Intellectual Property Rights of a third-party or which promotes any unlawful act;
      3. shall not distribute, license, sell, rent, lease or otherwise deal in or encumber the KD API;
      4. shall not modify, add to, or otherwise enhance the KD API;
      5. shall not copy the KD API; and
      6. shall not decompile, observe, study or test the functioning of the KD API.
    4. KD shall have the right at any time to access the Customer's website and/or computer system solely to ensure that the Customer is complying with this Agreement in respect of its use of the KD API.
    5. The Customer acknowledges that the KD API Data may contain third-party Intellectual Property Rights and the Customer shall ensure that its use of such KD API Data does not infringe the Intellectual Property Rights of such third-parties. In the event of any such infringement, the Customer's permission to use the KD API Data will automatically terminate and any copies made of the KD API Data must be immediately destroyed.
    6. KD grants to the Customer a limited, non-exclusive, revocable, non-assignable and non-transferable licence to download, copy, display, view and use the KD API Data, provided that the Customer shall not:
      1. create permanent copies of the KD API Data except to the extent permitted by this Agreement;
      2. without the prior written consent of KD, make derivative works of, or commercially distribute or otherwise exploit the KD API Data, or use the KD API Data in a manner that inaccurately suggests an association between the Customer and KD or its licensors; and/or
      3. otherwise use or exploit the KD API Data in any way for any purpose except as specifically permitted by this Agreement.
    7. KD reserves the right to make modifications to the KD API at any time for any reason and notice of such modifications shall be as notified to the Customer by KD from time to time.
    8. The Customer acknowledges and agrees that all Intellectual Property Rights in any modifications or enhancements made to the KD API by the Customer shall vest in KD upon creation, and KD shall be entitled to use any information provided by the Customer relating to modifications or enhancements that could be made to the KD API, without any right of the Customer to compensation for the same.
    9. Notwithstanding clause 5.9, to the extent that the Customer acquires any Intellectual Property Rights in the KD API or the KD API Data, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) KD or any relevant third-party nominated by KD. The Customer shall execute all such documents and do such things as KD may consider necessary to give effect to this clause 5.10.
  6. Warranties
    1. Each party warrants to the other that:
      1. it has full capacity and authority to enter into this Agreement;
      2. it is not, at the date of this Agreement, aware of any matters which could adversely affect its ability to perform its obligations under this Agreement to a material degree;
      3. it has obtained all necessary authorisations to enable it to perform its obligations under this Agreement and shall continue to do so throughout its term; and
      4. its obligations under this Agreement are valid, binding and enforceable.
    2. The Customer warrants and represents to KD that it (and/or its licensors) owns all Intellectual Property Rights in and to the Customer's website, the Customer's computer systems, the Customer Branding and the Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer's website, the Customer's computer systems, the Customer Branding and the Customer Content.
    3. KD warrants and represents to Customer that it (and/or its licensors (including any Third Party Software Provider)) owns all Intellectual Property Rights in and to Hatch (except for the Customer Branding and Customer Content) and the KD API and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Platform, Hatch (except for the Customer Branding, the Customer Content, and the Third Party Software) and the KD API.
  7. Fees
    1. In consideration of the Services that KD shall provide pursuant to this Agreement, the Customer shall pay the Fees. The frequency and the amount of such Fees shall be determined in accordance with the details set out in the Order Form
    2. The Customer acknowledges that the Third Party Fees are to be paid by the Customer to the Third Party Software Provider under the agreement entered into by the Customer pursuant to clause 3.18 and clause 3.19 and accepts that is receipts of the Services under this Agreement are conditional upon the payment of such Third Party Fees by the Customer to the Third Party Software Provider.
    3. In accordance with the Order Form, or as otherwise in accordance with KD's normal expenses policies or procedures from time to time, KD may charge the Customer for its reasonable expenses incurred in the course of performing its obligations under this Agreement, including for the reasonable accommodation, travel, telephone, food, subsistence, out-of-pocket, any other expenses incurred in the course of performing this Agreement outside of the relevant person's normal place of work, and materials or equipment agreed in writing between the parties that KD will purchase on the Customer's behalf. Such expenses shall not be considered to be included in any estimates or quotations which KD provides to the Customer at any time and shall be incurred and charged to the Customer on an ad hoc basis.
    4. The Customer shall pay the Development Fees (and subject to clause 7.5, any other sums due under this Agreement) to KD within 30 (thirty) days of the date of each invoice. Unless set out otherwise in this Agreement, KD may issue invoices to the Customer for such sums (and expenses) at such intervals as KD may, at its absolute discretion, consider appropriate. However, if KD is to incur significant expense on the Customer's behalf, the parties may agree (such agreement not to be unreasonably conditioned, withheld or delayed), on a case-by-case basis, that the Customer shall pay KD in advance before KD has incurred the expense; the Customer acknowledges that, without the Customer's agreement to incur the expense, KD reserves the right to stop performing the Services that are dependent on KD incurring such expense, and KD shall have no liability, subject to clause 12.1, for any delay or failure in the performance of the Services as a result.
    5. The Customer shall pay the Licence Fees monthly in advance on the date set out in the Order Form.
    6. KD shall be entitled to increase the Licence Fees on an annual basis on each anniversary of the Effective Date. Any such increase in the Licence Fees shall be in line with the percentage increase in Consumer Prices Index in the preceding 12 (twelve) month period, plus 5% (five percent).
    7. Unless otherwise set out in the Order Form, all sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
    8. The Customer shall pay KD all sums due under this Agreement by any payment method that KD may stipulate in the Order Form or otherwise in writing from time to time. No payment shall be considered paid until KD has received it in cleared funds in full.
    9. Payment of sums due under this Agreement shall be in the currency in force in England from time to time.
    10. All amounts due under this Agreement shall be paid by the Customer to KD in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    11. If the Customer is late in paying any part of any monies due to KD under this Agreement, KD may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:
      1. charge interest on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
      2. recover its costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and/or
      3. suspend performance of this Agreement (or the Services or any part of the Services including access to Hatch) until payment in full has been made.
  8. Confidentiality
    1. Each party must keep the other party's Confidential Information confidential and must not:
      1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
      2. disclose such Confidential Information in whole or in part to any third-party, except as expressly permitted by this clause 8.

      Each party must use adequate procedures and security measures to protect the other party's Confidential Information from inadvertent disclosure or release to unauthorised persons.

    2. A party may disclose the other party's Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
      1. it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
      2. it does so subject to obligations equivalent to those set out in this clause 8.
    3. A party may disclose the Confidential Information of the other party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 8.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    4. The obligations of confidentiality in this clause 8 shall not extend to any matter which either party can show:
      1. is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
      2. was independently developed by it; or
      3. was independently disclosed to it by a third-party entitled to disclose the same; or
      4. was in its written records prior to receipt.
    5. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
    6. On termination of this Agreement, each party must:
      1. return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
      2. erase all the other party's Confidential Information from its computer systems (to the extent possible); and
      3. where requested in writing, certify in writing to the other party that it has complied with the requirements of this clause 8.6, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause 8 shall continue to apply to any such documents and materials retained by a recipient party following termination of this Agreement for any reason.
    7. The provisions of this clause 8 shall continue to apply after termination of this Agreement.
    8. Neither party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) or as is required by law. The parties shall act in a co-operative way in approving any announcement following the other party's request for consent.
    9. Subject to both parties agreeing that the Customer's receipt of the Services has been a positive service experience (such agreement not to be unreasonably withheld), the Customer shall:
      1. co-operate with KD on a press release announcing the Customer/KD's commercial relationship within three months of the Effective Date and be willing to discuss the same with the media following such press release; and
      2. co-operate with any reasonable request from KD for assistance in the preparation of a case study documenting the Customer's experience in working with KD. The final text of the case study shall be subject to the Customer's written approval before publication which shall not be unreasonably withheld or delayed.
  9. Indemnity
    1. The Customer shall defend, indemnify and hold KD harmless against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
      1. the Customer Branding;
      2. the Customer Content;
      3. the Customer's website;
      4. the Customer's computer systems;
      5. the Customer's use of the KD API; and/or
      6. the Customer's or any End-User's use of Hatch (including the Third Party Software) and/or the KD API.
  10. Intellectual Property Rights

    Except as expressly stated in this Agreement, this Agreement does not grant either party any rights to, under or in, any Intellectual Property Rights belonging to the other party (and/or its licensors).

  11. Data Protection
    1. The parties understand and acknowledge that KD and the Customer is each an independent Controller in relation to their respective obligations under this Agreement.
    2. Each party shall, at all times, comply with all such Data Protection Legislation and any regulations made under it and in particular with the data protection principles set out in the Data Protection Legislation and with all relevant guidance notes issued from time to time by the Information Commissioner's Office. Any material breach of the Data Protection Legislation by one party shall, if not remedied within 10 (ten) Business Days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
    3. Each party warrants to the other that the Personal Data it shares in relation to its respective activities and obligations under this Agreement can be lawfully used or disclosed to and by each other in the manner anticipated by this Agreement.
    4. Where Personal Data is supplied to one party by the other party, the party in receipt of such Personal Data will ensure that it is only used for purposes lawfully authorised and in accordance with the terms of this Agreement.
    5. Each party shall be responsible for responding to and resolving:
      1. any complaint or request to exercise their rights from a data subject; or
      2. any correspondence with the Information Commissioner's Office,

      in relation to Processing it undertakes or in connection with this Agreement.

    6. Each party agrees to maintain all Personal Data received pursuant to this Agreement in accordance with the Data Protection Legislation and shall ensure that it has appropriate technical and organisational measures in place to protect against the unauthorised or unlawful Processing of Personal Data relating to customers and against accidental loss or destruction of, or damage to this Data.
    7. Each party shall ensure that the fair processing notices and (as required under Data Protection Legislation) any requests for consent are sufficient in scope to enable it to Process the Personal Data as required in order to obtain the benefit of its rights and fulfil its obligations under this Agreement in accordance with the Data Protection Legislation.
    8. In so far as one party (the Processing Party) Processes any Personal Data on behalf of the other party (the Controlling Party), it shall:
      1. act only on the written instructions of the other party (unless required by law to act without such instructions);
      2. ensure that all employees, agents and/or contractors Processing Personal Data are subject to a duty of confidentiality no less onerous than that set out in this Agreement;
      3. take all appropriate technical and organisational measures to ensure the security of all Processing in accordance with Article 32 of the GDPR;
      4. notify the other party promptly, without undue delay, in the event of a Personal Data breach for which the severity of such carries a likelihood of risk to data subjects' rights and freedoms to include but emotional, physical, financial or other economic disadvantage, a “Notifiable Breach” or where the other party identifies that such breach has been caused by the other party;
      5. employ a data protection officer if so required in accordance with Article 37 of the GDPR;
      6. reasonably assist the other party in meeting its GDPR obligations in relation to the security of Processing, the notification of Personal Data Breaches and data protection impact assessments;
      7. submit to audits and inspections providing the other party with all reasonable assistance and information necessary to ensure that both parties meet their obligations as set out in Article 28 of the GDPR;
      8. provide full co-operation with supervisory authorities such as the Information Commissioner's Office in compliance with Article 31 of the GDPR where applicable; and
      9. at the choice of the Controlling Party, delete or return all Personal Data to the other party upon termination or expiry of this Agreement unless it is required to perform its ongoing obligations under Policies or must be retained by the party in order to comply with regulatory requirements.
    9. Where the Processing Party Processes Personal Data of the Controlling Party under this Agreement, the Controlling Party hereby consents to the Processing Party appointing any other third-party to Process the Personal Data on behalf of the Controlling Party provided that the Processing Party imposes obligations upon the third-party relating to the Processing activity that are at least equivalent to those contained in this clause 11. Each party shall notify the other of any sub-processors engaged and where a sub- processor fails to fulfil its data protection obligations, the Processing Party shall remain fully liable to the Controlling Party for the performance of the sub-processor's obligations.
    10. If either party receives:
      1. a complaint or a request to exercise their rights, from a data subject; or
      2. any correspondence with the Information Commissioner's Office,

      in relation to the Processing undertaken by the other party, it shall refer such complaint, request or correspondence to the other party and each party shall provide such co-operation, information and assistance as is reasonably requested in relation to any complaint, request or other correspondence in relation to the Personal Data.

    11. Each party shall maintain all registrations under the Data Protection Legislation required for the performance of its obligations under this Agreement.
    12. Neither party shall transfer any personal data relating to this Agreement, outside the UK or European Economic Area without the prior consent of the other party and where consent is provided, in accordance with the requirements of the Data Protection Legislation.
  12. Limitation of Liability
    1. Nothing in this Agreement shall limit or exclude the liability of either party:
      1. for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      2. for fraud or fraudulent misrepresentation;
      3. under clause 9; or
      4. for any matter in respect of which it would be unlawful to exclude or restrict liability.
    2. Subject to clause 12.1 above:
      1. KD shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
        1. any loss of profit, sales, revenue, or business;
        2. loss of anticipated savings;
        3. loss of or damage to goodwill;
        4. loss of agreements or contracts;
        5. loss of use or corruption of software, data or information;
        6. any loss arising out of the lawful termination of this Agreement; or
        7. any loss that is an indirect or secondary consequence of any act or omission of the party in question; and
      2. KD's total aggregate liability arising out of or in connection with all other claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to 100% (one hundred percent) of all amounts paid and total other sums payable, in aggregate, by the Customer to KD under this Agreement in the 12 (twelve) months prior to the date on which the claim first arose.
  13. Term and Termination
    1. This Agreement shall, unless terminated earlier in accordance with this clause 13, continue until either party gives to the other party 30 (thirty) days' written notice to terminate, expiring no earlier than the end of the Minimum 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 is in material breach of any of its obligations under this Agreement, and, where such material breach is capable of remedy, the other party fails to remedy such breach within a period of 20 (twenty) Business Days of being notified of such breach;
      2. the other party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction;
      3. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; and/or
      4. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
    3. The Customer warrants and undertakes that it shall notify KD in writing if the Customer's agreement with any Third Party Software Provider, entered into by the Customer pursuant to clause 3.18 and clause 3.19, expires or is terminated for any reason whatsoever. Upon such termination or expiry, this Agreement shall terminate with immediate effect and the Customer acknowledges and accepts that KD, without affecting any other right or remedy available to it, shall be entitled to invoice for, and the Customer shall be liable to pay, an amount equal to the Fees that KD would have received if this Agreement had continued until the end of the Minimum Term, or in lieu of the Customer's failure to provide KD with 3 (three) months prior written notice to terminate this Agreement, as applicable.
    4. On termination of this Agreement:
      1. 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 this Agreement which existed at or before the date of termination, shall not be affected;
      2. all licences granted under this Agreement shall immediately terminate;
      3. the Customer shall immediately pay to KD all of KD's outstanding Fees and interest and, in respect of any Services provided but for which no Fees have been paid, KD shall submit an invoice, which shall be payable by the Customer immediately on receipt;
      4. any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect; and
      5. the agreement that the Customer has entered into with the Third Party Software Provider (pursuant to clause 3.18 and clause 3.19) shall continue in full force and effect, and the Third Party Software Provider shall continue to charge the Customer the Third Party Fees, which shall continue to be payable by the Customer directly to the Third Party Software Provider.
  14. No Partnership or Agency
    1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  15. Variation

    KD may vary this Agreement at any time by notifying the Customer via the functionality available through Hatch or in accordance with clause 19; provided, however, that KD provides at least 30 (thirty) days' advance notice in the event of any material adverse changes to this Agreement.

  16. Assignment

    The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without KD's consent.

  17. No Waiver
    1. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
    2. 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.
  18. Severance
    1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
    2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
  19. Notices
    1. Any notice given to either party under or in connection with this Agreement shall be in writing, addressed to the relevant party at its registered office or such other address as that party may have specified to the other party in writing, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, or by email.
    2. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; if delivered by email, at the time of transmission provided that a confirmatory copy is sent to the other party by first class post or recorded delivery on the first Business Day following transmission.
    3. The provisions of clause 19.1 and clause 19.2 shall not apply to the service of any proceedings or other documents in any legal action.
  20. Third Party Rights

    No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

  21. Force Majeure

    Neither party shall be liable for any failure to perform or delay in performance of any of its obligations hereunder due to fire, explosion, shortage of materials and/or energy, strike, labour dispute, breakdown of plant or machinery, computer system failure, flood, accident, epidemic, pandemic any act of any governmental, regulatory or other official body, any act, omission or default on the part of any supplier (including the Third Party Software Provider), service provider, contractor or other third party or any other event or circumstance beyond the reasonable control of the party affected provided that in the event of any such failure or delay the party affected shall give notice to the other party as soon as reasonably practicable specifying the reasons for such failure or delay and the obligations affected.

  22. Governing Law and Jurisdiction
    1. 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 construed in accordance with the law of England and Wales.
    2. 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).