Master Terms for Mailock Gateway Licence

 

1

Introduction
 

These Terms form part of the Agreement between Beyond Encryption Ltd and Customer, (each a "Party" and together the "Parties").
1.1
Purpose:
1.1.1 The purpose of these Terms is to outline the terms under which Beyond Encryption will provide Services to the Customer.
1.1.2 Unless otherwise stated, in the event of any conflict between the terms of these Terms, the Order and any other document relating to the Agreement, if any, the following order of precedence shall apply:
1.1.2.1 The Order;
1.1.2.2 These Terms; and
1.1.2.3 Other documents relating to the Agreement.
   

2

Definitions and Interpretation
2.1

Agreement means these Terms including any and all Order and Schedules together with (if and to the extent applicable) any documents incorporated by reference or appended to an Order;

Ancillary Services means any additional services agreed in writing between the parties from time to time and that are ancillary or complementary and are linked to the Services;

Authentication Method means the authentication method chosen by the Customer and set out in the Order;

Business Day means a day (other than a Saturday, Sunday or public holiday in England) when the banks in London are open for business;

Business Hours means the period from 0900 to 1700 on any Business Day;

Confidential Information means any commercial or technical information in whatever form which is disclosed by a Party or its Affiliates (a “Disclosing Party”) to the other Party or its Affiliates (a “Receiving Party”) and which would be regarded as confidential by a reasonable business person including, without limitation, all business, statistical, financial, marketing and personnel information, customer or supplier details, know-how, designs, trade secrets or software of the Disclosing Party or any member of its Group or any information that is marked as “Confidential”;

CPI means the Consumer Prices Index in the UK;

Critical Vulnerability means a common vulnerability and exposure (CVE) in the National Vulnerability Databased operated by the National institute of Standards and Technology which has s core of 8.0 or higher on the Common Vulnerability Scoring System.

Data means all data, information, text, drawings, diagrams, images or sounds that are embedded in any electronic or tangible medium;

Data Centre means the third-party data centre where our servers are located;

Data Protection Laws means the UK GDPR and the Data Protection Act 2018;

Fees means the fees, charges and expenses for Services and Ancillary Services set out in any Order or Schedule, as appropriate;

Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); interruption or failure of any utility services including telecommunication services and in the case of Beyond Encryption, acts or omissions by its infrastructure provider;

Indexation Date means each anniversary of the Services Commencement Date;

Intellectual Property Rights means patents, trademarks, logos, get-up, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, rights to data, semi-conductor topography rights, utility models, 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 rights to apply for registration, renewals or extensions and all rights or forms of protection having equivalent or similar effect anywhere in the world;

Order means the order for Services or Ancillary Services signed by both parties;

Policies means Beyond Encryption’s Acceptable Use Policy, Data Protection, Privacy and Data Retention Policies and such other policies and procedures as Beyond Encryption may supply to the Customer via its website www.beyondencryption.com from time to time including, where applicable our published guide for use of any administration console ;

Renewed Commitment Period means the period set out in clause 8;

Service Level has the meaning given to it in Schedule 4;

Services means any services specifically identified within an Order and as more particularly described in Schedule 2 from time to time, together with any Ancillary Services;

Service Commencement Date means any date stated as such in any Order;

Schedule means a document attached to an Order (and any annexes to it) which contains a description of the relevant Services and any additional terms and conditions;

Term the period for which Beyond Encryption will provide the Services as set out as a ‘Commitment Period’ in an Order;

UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;

VAT means Value Added Tax and any similar tax substituted for it or levied in addition to it.
2.2 References to a clause or schedule are to a clause of, or schedule to, this Agreement and clause headings are for ease of reference only;
2.3 The Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Schedules.
2.4 Unless the context otherwise requires, words (including defined terms) denoting the singular shall include the plural and vice versa;
2.5 References in this Agreement to statutes, or statutory instruments are to those statutes or statutory instruments as amended, modified or replaced from time to time;
2.6 References to a “subsidiary” or to a “holding company” shall mean those terms as they are defined in section 1159 of the Companies Act 2006;
2.7 References to “include” and “including” (or any similar term) shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.8 References to a “person” includes any firm, company, corporation, body, association or partnership (whether or not having separate legal personality) or any combination of the foregoing; and
2.9 A reference to a Party shall include reference to such Party’s successors and permitted assignees.
2.10 A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
2.11 A reference to writing or written includes email.
2.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
   

3

Structure of Agreement
3.1 Each Order shall be a separate contract between the parties to it, and all Orders will be subject to the terms of these Terms and any terms contained in the applicable Schedules and shall (together with any documents incorporated by reference or appended to an Order) be deemed incorporated into these Terms.
3.2 The terms of these Terms apply to the exclusion of the applicability of any terms and conditions supplied by the Customer to Beyond Encryption or that accompany any purchase order or other ordinary document.
   

4

Provision of Services
4.1 Subject to earlier termination in accordance with the terms of these Terms, in consideration of the Fees Beyond Encryption will use reasonable endeavours to provide the Services from the relevant Service Commencement Date for the relevant Commitment Period in accordance with these Terms.
4.2 Beyond Encryption shall perform the Services with reasonable care and skill but Beyond Encryption will not be in breach of this clause 4 as a result of any failure or interruption of any of the Services resulting from or otherwise affected by:
4.2.1 the actions of omission of Customer;
4.2.2 Force Majeure Event; or
4.2.3 works of inspection, maintenance, support and/or repair or other works being carried out at the Data Centre.
4.3 Beyond Encryption does not warrant that:
4.3.1 the Customer's use of the Services will be uninterrupted or error-free; or
4.3.2 that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
4.3.3 the Services will be free from vulnerabilities or viruses; or
4.3.4 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 Beyond Encryption warrants that for a period of 90 days from the Service Commencement Date, the Services will comply in all material respects with the technical services specification.
4.5 Except where agreed otherwise in the applicable Service Level Agreement, the Services are provided “as is” and on an “as available” basis. Beyond Encryption disclaims all warranties of any kind whether express or implied, relating to Services and all content delivered in connection thereto.
   

5

Customer’s Obligations
5.1 The Customer shall cooperate with Beyond Encryption in all matters relating to an Order and the provision of the Service.
5.2 The Customer is solely responsible and liable for all activities that are associated or associated with the use of the Service provided by Beyond Encryption without any limitation. You acknowledge that The Services have not been developed to meet your organisations individual requirements and it is therefore your responsibility to ensure that the functions available meet your requirements and security levels.
5.3 The Customer is also solely responsible for the information technology and computer programs through which you, or any users in your organisation access the Services.
5.4 The Customer shall at its own cost apply for, possess and maintain any and all authorisations, licences, registrations, and/or permits which is required to enable it to conduct its business and to use the Services.
5.5 The Customer undertakes to and shall comply with:
5.5.1 the terms and/or conditions as set forth in any authorisations, licences or permits;
5.5.2 the Policies; and
5.5.3 its obligations under these Terms (including but not limited to paying the Fees) and set out in the Order and any Schedule.
5.6 The Customer shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services; or (iii) allow any third parties to perform any technical security integrity review, penetration test, load test, denial of service simulation or vulnerability scan on the Services without our prior written consent; or (iv) pass yourselves off as Beyond Encryption, as an authorised representative of Beyond Encryption or as the provider of The Services; or (v) copy, rent, lease, distribute, or otherwise transfer any of the rights that the Customer receives hereunder other than as expressly authorised under an applicable Schedule.
5.7 The Customer shall abide by all applicable local, state, national and international laws and regulations.
5.8 In the event of a suspected or actual security breach regarding the Services, Customer shall notify Beyond Encryption as soon as possible and shall aid in any investigation or legal action that is taken by authorities and/or Beyond Encryption to cure the security breach.
5.9 The Customer agrees and acknowledges that:
5.9.1 the Services use ‘Encryption Keys’, a mathematical method used to safeguard data, to encrypt/decrypt messages including all attachments but excluding email addresses and message subject headers;
5.9.2 when sending and receiving secure messages transported using the Services, not all encryption keys pass through the Beyond Encryption infrastructure thereby deriving greater privacy and as such this is the recommended method of usage;
5.9.3 where a “web browser” is utilised to read or reply to a secure message, all message encryption keys pass through, but not all are stored within, the Beyond Encryption infrastructure. The transient nature of the unstored keys, during a secure read session, may lead you to determine that a lower level of security is derived;
5.9.4 you will at all times remain the data controller of the data, information, content and attachments of your email. You approve the release of your email to your intended recipient through your chosen Authentication Method and by doing so, apart from the ability to revoke your secure email, you transfer control of the content of the email to the recipient;
5.9.5 we at no time control the sending or release of your email or assume control over it or its content or the email applications used by you for creating, sending, releasing and storing emails. Beyond Encryption shall not be liable for any release of email by you or any third-party recipient of that email unless such release is due entirely to an act of gross negligence by us;
5.9.6 any messages you may receive via the Services are provided and controlled by the sending party and subject to the provisions described in clause 8 (Storage and Message Availability); and
5.9.7 Beyond Encryption will not accept responsibility for maintaining message access outside of the scope of the Services.
   

6

Fees and Payment
6.1 The Customer shall pay the Fees for the Services with effect from the Service Commencement Date.
6.2 Use of The Service will be monitored and reported upon accordingly. If this monitoring identifies that the number of users or messages sent, exceeds your licence terms, we (or your reseller) will invoice you monthly in arears for the excess usage in accordance with your agreed commercial terms.
6.3 The use of multi factor recipient authentication, such as SMS, as your chosen Authentical Method, will be charged and invoiced in accordance with these Terms and are subject for regular review during the Commitment Period.
6.4 Unless otherwise stated in the Order, the Customer shall pay all invoices, or all undisputed parts of invoices (as the case maybe) in full and cleared funds within 30 days of the date of the invoice.
6.5 Unless otherwise set out in the Order, Beyond Encryption may increase Fees on the Indexation Date during the Commitment Period by 5% per cent or (if higher) the percentage increase in the CPI during the 12 months preceding that date (for which purposes the percentage increase in the CPI will be calculated using (i) the figure for the CPI last published before the start of such 12-month period and (ii) the figure for the CPI last published before the end of such 12-month period.
6.6 Beyond Encryption may also increase Fees at any time to include:
6.6.1 any increases in charges imposed by Beyond Encryption’s infrastructure provider in respect of the provision of any Service or utility charge; and
6.6.2 any reasonable charges, levies or taxes introduced by the government or any regulatory bodies that are applicable to the Services and Beyond Encryption shall notify the Customer of the same in writing no less than 30 days in advance of any such increase taking effect.
6.7 If any sum due under these Terms is not paid by the Customer by the due date, then (without prejudice to Beyond Encryption’s other rights and remedies) Beyond Encryption reserves the right to:
6.7.1 charge interest on such sums on a daily basis (after as well as before judgment) from the due date to the date of payment at the rate stipulated by under English law; and
6.7.2 without prejudice to Beyond Encryption’s other rights and remedies and subject to giving to the Customer not less than a further 7 days’ notice of its intention to do so, to deny the Customer access to the Services.
6.8 All sums payable are exclusive of VAT or any other applicable tax or duty payable upon such sums that shall be added if appropriate at the rate prevailing at the relevant tax point and shall be paid in full without any set-off, counterclaim, deduction or withholding (other than as required by law).
 
 

7

Data Management
7.1 Each party shall comply with its respective obligations under the provisions of Data Protection Laws.
7.2 Other than as set out in clause 5.9, we do not expect to have access to or process any personal data that you encrypt using the Services which will, in most cases, be accessible as personal data only by you and the intended recipients of your encrypted emails.
7.3 Through the Services, we do have sight of a very limited amount of personal data contained in sender/recipient email addresses, subject headings of emails, the title of any attachment and when the email was set and when it was opened. To the extent that we process data in connection with the provision of the Services, it is accepted by both parties, on entering this Agreement, that you are acting as Data Controller and we are acting as Data Processor on your behalf. References in this clause to “data processor”, “data controller” and “personal data” shall have the meanings given to them in GDPR.
7.4 To the extent that we act as your data processor, we shall:
7.4.1 process personal data provided by you to us to the extent necessary to provide the Services, for the duration of your agreement with us;
7.4.2 always process personal data in accordance with your instruction; 
7.4.3 take appropriate technical and organisational measures to keep your personal data secure and assist you with your obligation to do the same;
7.4.4 assist you with any data subject access requests (SAR) (to the extent that we are able considering the limited data we are able to access); The extent to which we can comply with both a SAR and Right to be Forgotten will also depend on if you are a sender or a recipient of an email message secured by our Services;
7.4.5 assist you with any consultations in relation to data impact assessments;
7.4.6 only process personal data to the extent to provide the Services we agreed with you and shall not retain any personal data longer than necessary for the processing and as outlined in our Data Protection, Privacy and Data Retention Policies;
7.4.7 not intentionally transfer any personal or identifiable data outside the UK and European Economic Area (EEA) without your prior written consent;
7.4.8 on termination of this Agreement, delete or archive all personal data held by us. Data will be removed from our database and archived as stated by our terms of our Data Retention policy prior to full deletion and we will only release your data either via a Subject Access Request (SAR) or request by law enforcement agencies;  
7.4.9 no more than annually, provide you with all information necessary to demonstrate compliance with our obligations in this paragraph on request;
7.4.10 we will report any data breaches to you in accordance with applicable Data Protection Legislation.
7.5 We reserve the right to charge on time and materials basis for any support connected with this clause 7 beyond the scope that is reasonably required to meet our legal obligations.
7.6 It is your responsibility to notify us immediately if you receive any complaint, notice or communication which is related directly or indirectly to the processing of personal data under this Agreement and provide us with full operation in relation to any such complaint, notice or communication.
   

8

Storage and Message Availability
8.1 Messages and associated attachments that are managed and processed through the Services are encrypted and stored as a binary large object (BLOB) in the Data Centre for a period of 365 days, although this can be reduced by you if you inform us in writing.
8.2 Unless otherwise agreed the default storage location will be provisioned by Beyond Encryption, within the environment, or such other cloud storage solution of our Infrastructure Provider that we may select from time to time.
8.3 Where we provide cloud storage of encrypted messages, the availability of that aspect of the Services will be subject to the terms and conditions of the relevant cloud storage provider and subject to the limitations therein.
8.4 For the avoidance of doubt, we are not responsible for maintaining your email message data other than in the provision of our Services under these Terms.
   

9

Indemnity, Limitation of Liability and Insurance
9.1 The Customer shall defend, indemnify and hold Beyond Encryption and its Affiliates harmless from all liabilities, claims and expenses, including reasonably legal fees that arise from or relate to (i) the Customer’s use or misuse of, or access to, the Services, or otherwise from the Customer’s Data. Beyond Encryption reserves the right to assume control of any matter subject to the above indemnity and the Customer agrees to assist and cooperate with Beyond Encryption in the defence of such claims.
9.2 This clause 9 sets out the maximum liability of the parties (including any liability for the acts and omissions of its employees, agents and sub-contractors) to each other under or in connection with these Terms and/or an Order and/or a Schedule (as the case may be) and/or any Ancillary Services howsoever arising (including as a result of negligence, or any breach of its obligations under these Terms for breach of statutory duty or otherwise), but nothing in these Terms shall exclude or limit the parties’ liability for (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation.
9.3 Unless otherwise agreed in clause 9.4, to the maximum extent permitted by applicable law, neither Beyond Encryption nor its affiliates, or any of their respective directors, officers, employees, may be held liable under these Terms for more than the amount paid by the Customer to Beyond Encryption under the applicable Services Schedule under which liability arises during the 12 months prior to the event giving rise to liability even if Beyond Encryption had been advised of, knew, or should have known, of the possibility thereof.
9.4 Subject to the provisions of clause 9.5, in respect of any breach by Beyond Encryption of its obligations relating to Data Management in clauses 7.1 and 7.4, Beyond Encryption’s maximum aggregate liability shall be limited to the sum of £1,000,000.
9.5 In no event shall Beyond Encryption nor its affiliates, or any of their respective directors, officer, employees, contractors, agents, partners, suppliers or content providers be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to these Terms:
9.5.1 for indirect damage, any loss of contracts; loss of reputation and/or goodwill; lost profits, loss of business, loss of anticipated savings, cost of procurement of substitute goods or services, loss of revenue, loss of anticipated savings and/or loss of business; or loss of or damage or destruction of Data or information; or indirect, consequential or special loss, damage or liability even if such loss or damage was reasonably foreseeable or special, indirect, incidental, pure economic loss, punitive, compensatory or consequential damages of any kind whatsoever, substitute goods or services (however arising);
9.5.2 any loss or damage arising from your failure to implement, apply or otherwise utilise any patch or fix which has been issued by us or any other third-party supplier to correct any Critical Vulnerability;
9.5.3 any loss or damage arising a cybersecurity incident, include but not limited to cyber-attacks, data breaches, fraud or false impersonation, or other illegal activity, provided that we have complied with our obligations regarding security of the Services;
9.5.4 for any bugs, viruses, Trojan horses, or the like (regardless of the source of origination); or
9.5.5 for any loss or damage to hardware, except in cases of gross negligence or wilful misconduct by Beyond Encryption.
9.6 The Customer acknowledges that given the nature of the Data Centre and the Services and its own obligations under these Terms, it is reasonable for Beyond Encryption to exclude or limit its liability as set out in this clause 9.
9.7 For the avoidance of doubt, any applicable limitation of liability shall not apply to Customer's indemnification obligations, or Customer's payment obligations.
9.8 The Customer must procure and maintain appropriate and adequate insurance coverage for the Hardware against theft, damage, and other risks.
   

10

Term, Suspension and Termination
10.1 This Agreement shall commence on the date set out in the Order and shall continue throughout the Commitment Period unless before the end of the Commitment Period it is terminated in accordance with this clause.
10.2 If we have agreed a three-month Proof of Concept with you, at the expiry of that POC term, you will automatically transition into the Commitment Period which will then cover the delivery of the Service.
10.3 At the end of the Commitment Period, this Agreement shall automatically renew without the requirement for notice by either party for successive periods each of 12 months’ duration (“Renewed Commitment Period”), unless either party serves a written notice on the other party at least 90 days before the end of the then current Commitment Period requesting termination of this Agreement, in which case this Agreement shall terminate at the end of the then-current Commitment Period.
10.4 The terms of this Agreement shall also apply to any Renewed Commitment Period.
10.5 Only in the circumstances set out below, Beyond Encryption may, at any time and without notice, temporarily discontinue, suspend or modify the Services or any part of them where (i) this is strictly necessary in Beyond Encryption’s reasonable opinion for the purpose of making modifications to the Services in order to maintain their compliance with current security or other technical requirements or standards; or (ii) the Customer is in breach of its payment obligations; or (iii) Beyond Encryption’s infrastructure provider terminates or suspends the contractual relationship with Beyond Encryption for reasons beyond Beyond Encryption’s control and Beyond Encryption is unable to find a replacement within a reasonable time, despite its reasonable efforts.
10.6 In connection with any period of suspension or temporary discontinuance or modification permitted by the terms of clause 10.5 above:
10.6.1 no such period shall be taken into account in calculating the Service Levels;
10.6.2 Beyond Encryption shall not be liable for any loss or damage to the Customer including any liability it may incur to third parties; and
10.6.3 Beyond Encryption shall be entitled to charge and be paid all Fees until the end of the period of suspension, discontinuance or modification.
10.7 Termination of these Terms shall not automatically terminate any Orders then in force, which shall continue unless agreed otherwise by the parties in writing. Termination or expiry of any Order shall not affect or terminate any other existing Orders which shall continue in full force and effect, unless stated otherwise in any Order.
10.8 Either party may immediately terminate these Terms without payment of compensation or other damages caused to the other solely by such termination by giving notice to the other if any one or more of the following events happens:
10.8.1 the other party commits a material breach of any of its obligations under these Terms that is incapable of remedy; or
10.8.2 the other party fails to remedy, where it is capable of remedy, any breach of its obligations under these Terms (save as to payment) within a period of 30 days after having been required in writing to remedy or desist from such breach; or
10.8.3 the other party calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or a resolution is passed by the directors of the other party to seek a winding up or administration order, or the other party is the subject of a petition for a winding up order, or an application, notice of intention or other step to appoint an administrator, or has an administrative receiver or receiver appointed over all or any part of its business, undertaking, property or assets.
10.9 Beyond Encryption may immediately terminate an Order without payment of compensation or other damages caused to the Customer by giving notice to the Customer if the Customer fails to pay any Fees payable under the Order within 10 days of the due date for payment.
10.10 Termination of these Terms or any Order shall be without prejudice to the other rights and remedies of either party both under these Terms and at law.
10.11 On termination of these Terms, the Customer shall immediately pay to Beyond Encryption all of Beyond Encryption’s outstanding unpaid invoices and interest for the duration of the Commitment Period or the Renewed Commitment Period as appropriate.
   

11

Force Majeure
11.1 Provided it has complied with clause 11.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations provided that the Customer shall not be relieved of its obligations to pay any Fees due or as they fall due during the period of the Force Majeure Event. The time for performance of its other such obligations shall be extended accordingly.
11.2 The Affected Party shall:
11.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
11.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
11.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 30 days, the parties shall agree an appropriate course of action.
   

12

Intellectual Property Rights
12.1 Except as expressly stated, no Intellectual Property Rights of either party are transferred or licensed (expressly or impliedly or otherwise) under these Terms. As between the Parties, the Customer owns all intellectual property rights in Customer Data, and Beyond Encryption owns all intellectual property rights in the Beyond Encryption products and Services.
12.2 Beyond Encryption may use your trade mark or logo within its promotional activities to show that you are our client.
   

13

Confidentiality 
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 13.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
   

14

Data Protection
14.1 Subject to this Agreement, by providing Customer Data to or via Beyond Encryption, the Customer grants Beyond Encryption a licence to process Customer Data solely and exclusively for the purpose of providing the Services to the Customer during the Commitment Period and any Renewed Commitment Period.
14.2 The Customer is solely responsible and liable for its Customer Data and agrees that Beyond Encryption is not and will not in any way be liable for Customer Data. By providing Customer Data, the Customer affirms, represents and warrants that: (1) its Customer Data and use thereof will not violate this Agreement (including the Policies in effect from time to time) or any applicable law (including applicable data protection laws), regulation, rule or third party rights; (2) the Customer is solely responsible for the development, moderation, operation, maintenance, support and use of Customer Data; (3) Customer's Customer Data and its use thereof does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law, regulation, rule, or rights of third parties; and (4) except for the specific Services provided under this Agreement or other express contract, the Customer is solely responsible for the technical operation of Customer Data, including on behalf of Customer's end users.
14.3 To the extent applicable, the Customer warrants that it has and will continue to obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement or in connection with the use of the Services.
14.4 The Customer should refer to the then current relevant Policies in effect.
   

15

Assignment and Subcontracting
15.1 These Terms are personal to the Customer and the Customer shall not assign, novate, transfer, sub-contract, sub-license or otherwise part with these Terms or any of its rights or obligations under these Terms to any third party without the prior written consent of Beyond Encryption.
15.2 Beyond Encryption may assign, novate, transfer, sub-contract, sub-license or otherwise part with the benefit of these Terms as it deems appropriate and shall provide the Customer will notice of such dealings as soon as it is able.
15.3 Beyond Encryption may sub-contract all or any of its respective obligations under these Terms, provided that if it sub-contracts any of its respective obligations under these Terms, it shall not be relieved of any of its liabilities or obligations under these Terms by entering into any sub-contract and Beyond Encryption accepts liability for the acts and omissions of any sub-contractor as fully as if they were the acts or omissions of Beyond Encryption.
   

16

General 
16.1 Beyond Encryption may by notice in writing make any changes to the Services and Policies which are necessary to comply with any law applicable anywhere in the United Kingdom or with any published policies, guidelines or codes of practice not having the force of law but which represent good practice.
16.2 These Terms, together with the documents incorporated and referred to within it, contains the entire agreement and understanding between the parties in relation to their subject matter.
16.3 Each of the parties acknowledges that in entering into these Terms it has not relied on any oral or written representation, warranty or other assurance (except as provided for in these Terms) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in these Terms will limit or exclude either party’s liability for fraudulent misrepresentation.
16.4 If at any time any part of these Terms (including any one or more of the terms of these Terms or any part of one or more of these terms) is held to be unenforceable for any reason under any applicable law, the same shall be deemed omitted from these Terms and the validity of the remaining provisions of these Terms shall not in any way be affected or impaired as a result of that omission.
16.5 The failure on the part of either party to exercise, or any delay in exercising, any right or remedy hereunder shall not operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other remedy granted thereby or by any related document or by law.
16.6 Nothing in these Terms is intended to or shall operate to create nor shall be deemed to create any partnership, joint understanding or joint venture between Beyond Encryption and the Customer or to authorise the Customer to act as agent of Beyond Encryption, and the Customer shall have no authority to act in the name or on behalf of Beyond Encryption or to bind Beyond Encryption in any way.
16.7 All warranties, conditions, terms and representations not set out in these Terms, whether implied by statute or otherwise, are excluded to the extent permitted by law.
16.8 No third party shall have the benefit of or the right to enforce any term of these Terms.
16.9 No purported variation or alteration to these Terms shall be effective unless it is in writing signed by both parties.
   

17

Notices
17.1 Any notice required or authorised by these Terms must be in writing.
17.2 Notices served under these Terms shall be validly addressed and served if they expressly refer to these Terms and are sent by registered post to the other party’s address or by e-mail to Beyond Encryption’s E-mail Address or Customer’s Email Address as relevant or such other address or e-mail address as a party shall notify in writing to the other.
17.3 An automated response to a notice sent by e-mail that the e-mail has not reached the intended recipient, or that the recipient is out of the office or some other error message received by the serving party in response to a notice sent by e-mail is sufficient to show that the e-mail notice has not been received and shall invalidate the service of any e-mail notice.
17.4 Unless the actual time of receipt is proved, a notice or document sent by registered post is to be treated as having been received 2 Business Days after the date of posting.
   

18

Law and Jurisdiction
18.1 These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or its subject matter or formation.