ClarifiedBy platform subscription terms
These terms govern access to the Diligencia ClarifiedBy Platform and are incorporated by reference into each Subscription Proposal accepted by the Client. By accepting a Proposal, the Client agrees to be bound by these terms.
1. Interpretation
The following definitions apply throughout these Terms:
Authorised Users: The Client's employees authorised to use the Service during the Subscription Term.
Business Day: Any day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: any information disclosed by one party to the other that is designated as confidential or that a reasonable person would consider confidential given its nature or the circumstances of disclosure, including without limitation business plans, financial information, technical data, trade secrets, customer lists, pricing and the terms of this agreement, but excluding information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) was already lawfully known to the Receiving Party before disclosure; (c) is lawfully received from a third party without restriction; (d) is independently developed by the Receiving Party without reference to the Confidential Information; or (e) is required to be disclosed by law or regulatory authority, provided the Receiving Party gives prompt prior notice where legally permitted.
Client Data: Data inputted by the Client or its Authorised Users in connection with the Service.
Data Protection Terms: The separate Data Protection Terms document published by Diligencia , incorporated into these Terms.
Effective Date: The date on which the Client accepts the Subscription Proposal.
Entire Agreement: The documents relied on to form the Contract. These shall include: The Subscription Proposal & Agreement, The ClarifiedBy Platform Subscription Terms, The ClarifiedBy Data Protection Terms and Diligencia’s Privacy policy.
Initial Subscription Term: The subscription period stated in the Proposal (typically 12 months).
Intellectual Property Rights or IPR: All patents, copyright, database rights, trademarks, trade secrets and all other intellectual property rights, whether registered or unregistered, anywhere in the world.
Normal Business Hours: 8:00 am to 6:00 pm UK time on each Business Day.
Platform: The online database and software application made available by Diligencia via www.clarifiedby.com or such other URL as notified to the Client.
Proposal: The subscription proposal issued by Diligencia and accepted by the Client, setting out the applicable Subscription Fees, Service Credits, Views and Subscription Term.
Renewal Period: Each successive 12-month period following the Initial Subscription Term, as described in clause 9.
Service Credits: Credits purchased by the Client entitling Authorised Users to submit update requests via the Platform.
Subscription Fees: The fees payable by the Client as set out in the Proposal.
Subscription Term: The Initial Subscription Term together with any subsequent Renewal Periods.
Support Policy: Diligencia's support service policy, as published at www.clarifiedby.com from time to time.
VAT: Value added tax or any equivalent tax chargeable in the UK or elsewhere.
Views: Credits purchased by the Client entitling Authorised Users to conduct profile search views via the Platform.
Virus: Any software, code, file or programme which may impair the operation of any computer, network or telecommunications service, including worms, Trojan horses and similar.
References to a "party" include its successors and permitted assigns. The singular includes the plural and vice versa. Clause headings do not affect interpretation.
2. Access and user subscriptions
2.1 Grant of access
Subject to payment of the Subscription Fees and compliance with these Terms, Diligencia grants the Client a non-exclusive, non-transferable, revokable right to permit its Authorised Users to access and use the Platform during the Subscription Term solely for the Client's internal business operations. For the avoidance of doubt, the Client may incorporate data obtained from the Platform within reports it prepares for its own end users.
2.2 Authorised users
The Client undertakes that:
a) each Authorised User shall keep their password secure and confidential and change it on a regular basis;
b) it shall maintain an up-to-date list of Authorised Users and provide this to Diligencia within five Business Days of a written request;
c) it shall permit Diligencia to audit the Platform to verify Authorised User details. Audits may not occur more than once per quarter and shall be conducted with reasonable prior notice and at Client’s expense;
d) if an audit reveals that a password has been shared with an unauthorised individual, the Client shall promptly disable it; and
e) if an audit reveals an underpayment of Subscription Fees, the Client shall pay the shortfall within ten Business Days.
2.3 Prohibited conduct
The Client and each Authorised User must not:
a) introduce Viruses or any malicious code to the Platform;
b) seek unauthorised access to the Platform, its servers or any connected systems;
c) launch any denial-of-service or distributed denial-of-service attack against the Platform; or
d) attempt to copy, modify, reverse-engineer, disassemble or create derivative works from any part of the Platform software.
A breach of clause 2.3 will result in immediate termination of the Client's access without further notice.
2.4 Restrictions on use
The Client must not:
a) access the Platform to build a competing product or service;
b) resell or make the Platform available to third parties (other than Authorised Users) except as permitted under clause 2.1; or
c) without Diligencia's prior written consent, assign, sublicense or otherwise transfer its access rights.
2.5 Support
Diligencia will provide its standard client support by telephone or email during Normal Business Hours in accordance with its Support Policy. Diligencia may update the Support Policy at its discretion from time to time. Enhanced support may be purchased separately.
3. Third party providers
The Platform may enable the Client to access or interact with third party websites or data sources. The Client does so at its own risk. Diligencia is not responsible for third party content, transactions, or the accuracy of third party information. Diligencia gathers data from third party sources believed to be reliable but does not independently verify it. All use of third party information is at the Client's own risk, and Diligencia expressly disclaims liability for any inaccuracy, incompleteness or unreliability of that information.
4. Diligencia's obligations
Diligencia undertakes that the Platform will be provided with reasonable skill and care. This obligation does not apply to non-conformance caused by:
a) use of the Platform contrary to Diligencia's instructions; or
b) modification or alteration of the Platform by any party other than Diligencia or its authorised contractors.
Where the Platform does not conform to the above standard, Diligencia will use all reasonable commercial endeavours to correct the non-conformance or provide an alternative means of achieving the intended result. Diligencia does not warrant that the Platform will be uninterrupted or error-free, or that the Client's specific requirements will be met. Diligencia is not responsible for delays or failures in data transmission attributable to communications networks or the internet.
Diligencia warrants that it holds all necessary licences, consents and permissions required to perform its obligations under these Terms. These Terms do not prevent Diligencia from entering into agreements with other parties or developing similar products or services independently.
5. Client's obligations
The Client shall:
a) provide Diligencia with all necessary co-operation and access to information reasonably required to deliver the Service;
b) comply with all applicable laws in connection with its use of the Platform;
c) ensure that Authorised Users use the Platform in accordance with these Terms and be responsible for any breach by an Authorised User;
d) ensure that its network and systems comply with the specifications provided by Diligencia from time to time;
e) only use any search function for normal, reasonable, day-to-day business use and not excessively use it for any other purpose; and
f) be solely responsible for procuring and maintaining its own network connections and telecommunications links
6. Changes and payment
6.1 Subscription fees
The Client shall pay the Subscription Fees set out in the Proposal. Service Credits and Views will be credited to the Client's account on the Effective Date upon payment.
6.2 Use of Service Credits and Views
Service Credits are deducted from the Client's account each time an Authorised User submits an update request. Views are deducted each time an Authorised User views a profile. If the balance of Service Credits or Views reaches zero, Diligencia will contact the Client to offer an upgrade. Diligencia may, at its discretion, decline to provide further credits until an upgrade is agreed.
6.3 Expiry of credits
Any unused Service Credits or Views at the end of the Initial Subscription Term or any Renewal Period will be forfeited without refund, except as provided in clause 9.1(a) below.
6.4 Invoicing and payment terms
Diligencia will invoice the Client prior to the Effective Date. The initial invoice is payable immediately, prior to the Effective Date. Subsequent invoices are payable within 30 days of the invoice date. If payment is not received by the due date:
a) Diligencia may suspend the Client's access to the Platform without liability until payment is received; and
b) interest shall accrue daily at 4% above the Barclays Bank plc base lending rate from the due date until the date of actual payment.
6.5 General payment terms
All Subscription Fees are:
a) payable in pounds sterling or US dollars;
b) non-cancellable and non-refundable, except for any pro-rata refund of unused Service Credits and Views on a termination by the Client under clause 9.1(a); and
c) exclusive of VAT, which shall be added at the applicable rate.
The Client shall pay all amounts in full without deduction or set-off. If a deduction is legally required, the Client shall gross up the payment so that Diligencia receives the full amount it would have received without the deduction.
6.6 Fee increases
Diligencia may increase the Subscription Fees at the start of each Renewal Period on 90 days' prior written notice.
7. Intellectual property
Diligencia and/or its licensors own all Intellectual Property Rights in the Platform and its content. These Terms do not grant the Client any rights in those IPRs other than the limited access rights set out in clause 2. Diligencia confirms it has all rights necessary to grant the access rights set out in these Terms.
8. Confidentiality
Each party may receive Confidential Information from the other in connection with the Service.
Each party shall hold the other's Confidential Information in confidence and shall not disclose it to any third party or use it for any purpose other than performing its obligations under these Terms. Each party shall take all reasonable steps to prevent unauthorised disclosure by its employees or agents.
The Client acknowledges that the Platform, its content, and results of any performance tests constitute Diligencia's Confidential Information. Diligencia acknowledges that Client Data is the Client's Confidential Information.
Neither party shall make any public announcement about these Terms without the prior written consent of the other, except as required by law. This clause 8 survives termination.
9. Term and termination
9.1 Duration and renewal
These Terms commence on the Effective Date and continue for the Initial Subscription Term. Thereafter they automatically renew for successive Renewal Periods of 12 months each, unless:
a) the Client terminates within the first month of the Initial Subscription Term by written notice within that month, in which case Diligencia will refund a pro-rata fee for the remaining 11 months;
b) either party gives the other at least 60 days' written notice before the end of the then-current Initial Subscription Term or Renewal Period; or
c) these Terms are terminated earlier in accordance with clause 9.2 below.
9.2 Termination for cause
Either party may terminate these Terms with immediate effect by written notice if the other party:
a) fails to pay any amount due within 15 days of being notified of non-payment;
b) commits a material breach that is irremediable, or (if remediable) fails to remedy it within 14 days of written notice, or in the case of Diligencia, Diligencia fails to provide a remediation plan within 14 days;
c) repeatedly breaches these Terms in a manner justifying the view that it cannot or will not comply (for the avoidance of doubt, two or more breaches of the same type within any rolling 6-month period shall meet such threshold); or
d) becomes insolvent, enters administration or liquidation, makes a composition with creditors, or suffers any analogous event in any jurisdiction.
9.3 Consequences of termination
On termination:
a) all access rights granted under these Terms immediately cease;
b) each party shall return or destroy the other's Confidential Information; and
c) accrued rights and liabilities of the parties are not affected.
10. Indemnity
10.1 Client indemnity
The Client shall defend, indemnify and hold harmless Diligencia against all claims, losses, damages, expenses and costs (including reasonable legal fees) arising from the Client's use of the Platform, provided that Diligencia gives the Client prompt notice of any claim, provides reasonable co-operation in its defence, and the Client is given sole authority to defend or settle the claim.
10.2 Diligencia IP indemnity
Diligencia shall defend the Client against any claim that the Platform infringes any UK patent effective as at the Effective Date, copyright or trademark, and shall indemnify the Client for amounts awarded in judgment or settlement, provided that the Client gives Diligencia prompt notice, provides reasonable co-operation, and Diligencia is given sole authority to defend or settle the claim.
In defending any such claim, Diligencia may: a) procure the right for the Client to continue using the Platform; b) modify the Platform to make it non-infringing; or c) if neither is reasonably available, terminate these Terms on two Business Days' notice without further liability to the Client.
Diligencia has no liability under clause 10.2 to the extent the alleged infringement results from modification of the Platform by anyone other than Diligencia, use contrary to Diligencia's instructions, or continued use after notice of the alleged infringement.
11. Limitation of liability
11.1 Entire financial liability
This clause 11 sets out the entire financial liability of Diligencia (including its employees, agents and sub-contractors) to the Client.
11.2 Exclusions from liability
Subject to clause 11.3, Diligencia is not liable for:
a) loss of profits, business, goodwill, data or pure economic loss; or
b) any special, indirect or consequential loss or damage, however arising under or in connection with these Terms.
11.3 Liability cap
Diligencia's total aggregate liability (including under the IP indemnity in clause 10.2 and any indemnity granted under the Data Protection Terms, including under clause 10 of such terms) shall not exceed the total Subscription Fees paid by the Client in the 12 months immediately preceding the date on which the relevant claim arose.
11.4 Mandatory exceptions
Nothing in these Terms limits liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation.
11.5 Client responsibility
The Client assumes sole responsibility for the results it obtains from use of the Platform. Diligencia is not liable for any damage caused by errors in information or instructions provided by the Client. All implied warranties, representations and conditions are excluded to the fullest extent permitted by law. The Platform is provided on an 'as is' basis.
12. Data protection
The parties' data protection obligations are set out in the Data Protection Terms. By accepting a Subscription Proposal & Agreement, the Client confirms it has read and agrees to The ClarifiedBy Data Protection Terms, which are incorporated into these Terms.
13. Force majeure
Diligencia shall have no liability for any failure or delay in performing its obligations caused by events beyond its reasonable control, including strikes, utility failures, acts of God, pandemic, war, civil commotion, government orders, fire, flood or supplier defaults, provided the Client is notified of the event and its expected duration.
14. General
14.1 Variation
No variation of these Terms is effective unless made in writing and agreed by both parties. Diligencia may update these Terms from time to time by publishing revised versions with reasonable notice.
14.2 Assignment
The Client may not assign or transfer any rights or obligations under these Terms without Diligencia's prior written consent. Diligencia may assign its rights and obligations at any time.
14.3 Waiver
No failure or delay to exercise any right under these Terms constitutes a waiver of that right. Waivers must be in writing to be effective.
14.4 Severance
If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions continue in full force. Invalid provisions shall be modified to the minimum extent necessary to give effect to the commercial intent of the parties.
14.5 No partnership or agency
These Terms do not create any partnership, joint venture or agency between the parties. Neither party has authority to bind the other.
14.6 Third party rights
These Terms do not confer rights on any third party under the Contracts (Rights of Third Parties) Act 1999.
14.7 Notices
Notices under these Terms shall be in writing and delivered by hand, first-class post or email to the addresses stated in the Proposal. Email notices are deemed received one Business Day after transmission. Postal notices are deemed received in the normal course of post.
14.8 Conflict
In the event of any conflict between these Terms and the Proposal, these Terms shall prevail unless the Proposal expressly provides otherwise.
14.9 Governing law and jurisdiction
These Terms and any dispute arising from them (including non-contractual claims) are governed by the law of England and Wales. The courts of England and Wales have exclusive jurisdiction.