Maximillian Workflows - Terms of Service

Malbec Limited (the "Service Provider", or "Malbec") incorporated and registered in England and Wales with company number 07359179 whose registered office is W8a Knoll Business Centre, 325-327 Old Shoreham Road, Hove, England, BN3 7GS. Malbec provides software services to Clients. Malbec operates the website www.maximillian-workflows.com and operates the brand Maximillian Workflows. These Terms and Conditions shall apply to the provision of services by Malbec to its Clients.

These Policy documents apply to Clients and are incorporated by reference into these Terms and Conditions:

Definitions and Interpretation
1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
  1. "Maximillian Workflows" means Malbec and vice versa;
  2. "Client" means the party procuring the Services from Malbec who shall be identified in the Order Form;
  3. The "Order Form" means the form specifying the details agreed between the Parties for the provision of the Services;
  4. "Services" means the provision of an online platform to the Client to provide Workflow Processes of the Client to its Customers, and an online platform to allow the alteration of the Workflow Processes by the Client of its Workflow Processes and general access to and maintenance of data generated by Workflow Processes;
  5. "Client's Website" is the website that is represented to Customers as belonging to the Client, that provides Workflow Processes to Customers and is implements by the Malbec platform;
  6. "Workflow Processes" means the processes that the Client defines and that the Client's Customers will execute when using the Client's Website;
  7. "Meta Processes" means the processes that the Client uses to alter the Workflow Processes, primarily by, but not limited to, using the Admin Console;
  8. "Customer" means the customer of the Client who shall use the Client's Website to make use of the Client's Workflow Processes (possibly including the employees of the Client, or members of the public);
  9. "Agent" means a representative of the Client who shall use and have access to the Admin Console in any way or modify the Meta Processes in any way;
  10. "User" means someone who uses the Client's Website or the Admin Console as either a Customer or Agent.
  11. "Commencement Date" means the date on which provision of the Services will commence, as defined in the Order Form;
  12. "Agreement" means these Terms and Conditions together with the Order Form;
  13. "Billing Period" means the period in respect of which Malbec invoices for the Services;
  14. "Business Day" means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
  15. "Client Materials" means all information, data and material belonging to the Client. Specifically the Workflow Processes are Client Materials, however the means of defining Workflow Processes is not;
  16. "Website Materials" means the website assets necessary for the provisioning of the Client Website;
  17. "Admin Console" is the online platform that provides access to and modification of the Meta Processses, and underlying data for the Malbec platform.
  18. "Confidential Information" means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium); and whether or not the information is expressly stated to be confidential or marked as such, having regard to the content of the information;
  19. "Malbec Materials" means the audio and visual information, documents, software, products and services made available to you as part of the Services;
  20. "Malbec Training Materials" means the materials provided by Malbed to the Client in order to faciliate the use of the Admin Console, commonly referred to as Help and Tutorials, and can include web resources, web pages and videos.
  21. "Malbec Technology" means all of our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) which we make available in the course of providing the Services;
  22. "Fees" means any and all sums due under the Agreement from the Client to Malbec, as specified in the Agreement;
  23. "Fees Increase Notice" means a notice from Malbec to the Client increasing the Fees and given in accordance with clause 5.12 of these Terms and Conditions;
  24. "Group" in relation to a company, that company, and any subsidiary or holding company from time to time of that company;
  25. "Form" means a web page as constructed by the Admin Console that forms part of a Wizard, and possibly collects data from Users.
  26. "Wizard" means a Wizard as defined by the Admin Console; A Wizard is a series of Forms forming a journey possibly prompting Users to enter data.
  27. "Action" means an executable step within a "Plan", that is constructed as a part of a "Workflow" by the Admin Console.
  28. "Plan" means a set of Actions as a part of a Workflow, that can be executed at a point in time.
  29. "Initial Term" has the meaning provided in clause 12.1 of these Terms and Conditions;
  30. "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered (including any application or right of application for such rights, copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
  31. "Subsequent Term" has the meaning given in clause 12.1;
  32. "Term" means either the Initial Term or a Subsequent Term, as the case may be;
  33. "Renewal Date" means the date on which any Subsequent Term begins;
  34. "Termination Date" means the date upon which this Agreement terminates or expires;
  35. "Termination" means termination of the Agreement in accordance with clause 12;
  36. "Additional Services" means any explicitly offered add-on or service provided by Malbec to the Client that incurs a Fee.
  37. "Consultation" means any extra support supplied by Malbec to the Client in developing Workflow Processes, provisioning Services and Additional Services or developing Website Materials and any other work in excess of the provisioning of Services covered in clause 2.
  38. "Consultation Day" means a days worth of work provided as Consultation.
2. Unless the context otherwise requires, references in these Terms and Conditions to the below expressions, shall mean as follows:
  1. "writing", includes a reference to any communication effected by electronic or facsimile transmission or similar means;
  2. "these Terms and Conditions" – is a reference to these Terms and Conditions as amended or supplemented from time to time in writing;
  3. "clause" or "paragraph" – is a reference to a clause or paragraph in these Terms and Conditions; and
  4. a "Party" or the "Parties" – refers to the parties to the Agreement.
3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
4. Words imparting the singular number shall include the plural and vice versa.
5. References to any gender shall include other genders.
6. References to persons shall include corporations.
7. A reference to a statute or statutory provision includes:
  1. any subordinate legislation made under it;
  2. any repealed statute or statutory provision which it re-enacts (with or without modification)
  3. any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it.
Provision of the Services
1. Malbec with provide at cost the Client, covered under Fees, the provision of any Website Materials necessary for the provision the Services; and/or provide reasonable assets and/or support to a third party website developer the Client shall designate in order to develop Website Materials for the provisioning of Services. This article does not supersede or exclude any other articles of Intellectual Property or ownership mentioned in this Agreement.
2. Malbec will provide on request by the Client to the Client the provision of any additional resources necessary (as offered by Malbec) for the provisioning of Services at cost to the Client at the discretion of Malbec, outlined under Fees.
3. With effect from the Commencement Date, Malbec shall provide Services to the Client until Termination, on condition of the provisioning of Website Materials and any other resources necessary for the operation of the Services;
4. Any failure or delay of the Client in meeting his obligations as defined in clause 4 of these Terms that impact the provisioning of the Services shall not be the responsibility or fault of Malbec.
5. If the provisioning of the Website Materials or other resources necessary for the operation of Services is the responsibility of Malbec and not provided by the Commencement Date, then Malbec will make every effort to provide such in a timely manner and the Commencement Date will then begin only on the provision of such. No other faults or penalties shall be incurred by Malbec. If the provisioning of the same is the responsibility of the Client or any designated third party, then the Commencement Date will maintain;
6. Malbec warrants that the Services will be provided with reasonable skill and care, commensurate with prevailing standards in the software services sector in the United Kingdom;
7. In consideration of the Fees, Malbec shall make the Services available to the Client;
8. It is agreed between the parties that provision of the Services shall not be interpreted as provision of any specific service detailed on Malbec’s website, in any of the Malbec’s demos or in Malbec’s communications with the Client, unless agreed with the Client as an Additional Service and included in the Order Form. Malbec reserves the right to modify or withdraw any specific service which is not an Additional Service, and any such modification or removal will not constitute a breach of this agreement;
9. Malbec will provide access to the Admin Console to the Client's Agent as soon as is practicable after the Commencement Date. The Agent will have access to the Services for the duration of the Agreement;
10. Malbec with provide access to the Workflow Processes and to the Client's Website by the Client's Customers for the duration of the Agreement;
11. Malbec with provide training materials and limited initial support for the setup of Workflow Processes;
12. Malbec with provide extensive support at cost, covered under Fees, to the Client for the development of Workflow Processes, and the modification of Client Materials if necessary to support new Workflow Processes;
13. Malbec will provide the facility to test any Workflow Processes that are defined, and to control the release of any Workflow Processes, such that the development of such will not impact production without the express action of the Agent. Malbec will provide the ability to 'rollback' or revert the currently active Workflow Processes by action of the Agent, to any previous Workflow Processes;
14. Malbec is under no obligation to correct any Workflow Processes or incur any liability due to error defined within or caused the by the release into production of any Workflow Processes by the Agent. Malbec will make reasonable efforts in good faith to support the Client;
15. Malbec is under no obligation to correct any Website Materials or incur any liability due to error defined within or caused the by the release into production of any Website Materials by any third party or the Client. Malbec will make reasonable efforts in good faith to support the Client;
16. Malbec shall act in accordance with all reasonable instructions given to it by the Client provided that such instructions are compatible with the specification of Services provided in the Agreement;
17. Malbec will host and maintain the Client's data and other data related to the provision of Services. The data will be stored in respect of a fundamental level of security, and fault resilience. Additional levels of security and or resilience will be offered under Additional Services;
18. Malbec may from time to time during this Agreement and for a reasonable period following its termination, monitor and electronically audit the Client’s use of the Services to ensure compliance with the Agreement;
19. Malbec may, upon request, provide Additional Services to the Client outside the Scope of Services in the Agreement. Malbec reserves the right to charge for Additional Services;
Licence and Prohibitions
1. Malbec grants the Client, his Agents, and his Customers a non-exclusive, non-transferable licence (with no right to sub-licence) during the Term, access to the Client's Website and Workflow Processes through the use of a standard web browser and through other means as understood and indicated by Malbec;
2. Malbec grants the Client and his Agent a non-exclusive, non-transferable licence (with no right to sub-licence) during the Term, access to the Admin Console and Meta Processes through the use of a standard web browser and through other means as understood and indicated by Malbec;
3. To the extent permitted by applicable law, the licence granted, shall be subject to the following prohibitions:
  1. Not to modify or make derivative works based upon Malbec’s technology, material or the Services;
  2. Not to reverse engineer Malbec’s technology, material or the Services in any way to build a competitive product or service; nor to build a product using similar ideas, features, functions or graphics of the Services or copy any ideas, features, functions or graphics;
  3. Not to provide false identity information to gain access or to use the Services;
  4. Not to sub-licence, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Client’s permission to access and use the Services or allow any unauthorised person to access or use the Service except to the limited extent that Malbec expressly permits in relation to the Client’s Customers and Agents;
  5. Not use the Service in a way that is unlawful, illegal, fraudulent or harmful;
  6. Not alter or adapt or edit the Service save as expressly permitted by Malbec;
  7. Not access or use the Service if the Client is (or the entity they act for is) a direct competitor of Malbec;
  8. The Client is not authorised either during or following the Term of the Agreement to access the object or source code Malbec uses to provide the Services;
  9. An Agent, for the purposes of this document, is defined as an operator of the Admin Console and the author and maintainer of the Meta Processes. The Agent is restricted to an employee of the Client or a private sub-contractor and specifically not affiliated with any other third party;
  10. The Client shall not provide access to the Admin Console by anyone other an Agent;
  11. The Client or his Agent shall not use the Admin Console at the direction of or for the benefit of any third party, or in any way other than as designed for the specific use of the Client;
  12. The Client shall not conduct penetration testing or load testing of the production Services.
  13. The Client shall not generate Workflow Processes that consume processing resources and do not generate Fees, and Malbec reserves the right to suspend the same. To a limited extent, such Workflow Processes will be allowed at Malbec's discretion.
Client’s Obligations
1. The Client shall use all reasonable endeavours to provide all pertinent information to Malbec that is necessary for Malbec’s provision of the Services.
2. If Malbec requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part of it at any time, the Client shall provide this in a reasonable and timely manner.
3. The Client shall comply and procure that all its users (Customers and Agents) of the Services comply with the terms of the Acceptable Use Policy set out in these terms.
4. The Client will ensure that the Client’s account remains secure and protected and that no unauthorised person accesses the Service using the Client’s account. The Client will notify Malbec upon knowing or suspecting unauthorised access to the Client account or any other security breach.
5. The Client will always comply with the laws and regulations of the jurisdiction(s) in which it operates in respect of the Services.
6. The Client will be solely responsible for:
  1. Obtaining and maintaining all necessary licences, consents, and permissions necessary for Malbec, its contractors and agents to perform their obligations under the Agreement, including without limitation, the Services;
  2. Ensuring that the Client’s network and systems comply with any relevant specifications provided by Malbec from time to time;
  3. Obtaining and maintaining all necessary licences, consents, and permissions necessary for Malbec, its contractors and agents to perform their obligations under the Agreement, including without limitation, the Services;
  4. Procuring and maintaining its own network connections and telecommunication links from own systems to the Service; and
  5. All problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunication links or caused by the internet.
7. The Client will appoint one representative from its organisation with comprehensive knowledge of its systems to act as the single point of contact for the Client’s organisation in relation to Malbec’s support of the Services.
8. The Client will notify Malbec a head of time and in a timely manner of any significant change to the level of activity expected in respect of the use of the Services. Any resultant throttling or restricted access to the services necessary due to dramatically increased loads shall not be the fault of Malbec, or incur any liability onto Malbec, regardless of any prior notification.
Fees, Payment and Records
1. The Client shall pay the Fees to Malbec in accordance with the provisions of these Terms and Conditions and the Order Form.
2. Fees will be as set out on the Order Form for the Initial Term and applied as follows:
  1. Monthly Subscription Fee: for maintenance of the Client's accounts and associated assets;
  2. Additional Services Fee: will be for additional services not included in our Monthly Subscription Fee, as agreed with the Client;
  3. Data Collection Fee: Every Wizard that is created shall incur the Data Collection Fee.
  4. Execution Fee: The execution of any Plan that generates internet traffic shall incur the Execution Fee. If the Plan also incurs a Data Collection Fee, then the Execution Fee shall be wavered;
  5. Consultation Fee: From time to time additional support (referred to as Consultation) may be required in the use of Services and the development of the Website Materials. The Consultation Fee procures a day's worth (8 hours) of Consultation. Any Consultation done shall consume the Consultation Day on a half hour basis, such that a Consultation Day can remain in credit to the Client in part over a period of time. The commissioning of a Consultant Day shall be agreed to with the Client ahead of the provisioning of the same. The Consultation Fee is subject to change prior to the commissioning thereof. Malbec is under no obligation to justify or itemize the consumption of Consultant Days. Upon Termination of this Agreement, any outstanding credit in terms of Consultation Days is non-refundable and non-transferable;
  6. Provisioning Fee: The initial provisioning of Services shall incur a setup Fee;
3. Should the Client use the Services in any way that results in costs imposed on Malbec, that exceed the variable Fees, then Malbec can pass those costs onto the Client as Excessive Use Fees;
4. The Client will be invoiced on a monthly basis;
5. Fees in relation to the Services shall commence from the Commencement Date specified in the Order Form subject to the conditions laid out in this Agreement. If the Services commence partway through a month, Malbec will reduce the Fees for that month on a pro-rata basis;
6. The Client will provide Malbec with complete and accurate billing and contact information during the terms of the Agreement;
7. If the Client reasonably and in good faith disputes an invoice or part of it, the Client shall notify Malbec of the dispute within 7 days of receipt of the disputed invoice, including details of why the invoiced amount is incorrect and, if possible, how much the Client considers is due. The Client will pay all undisputed Fees by their due date;
8. All Malbec invoices are to be paid by the Client through Direct Debit. Malbec will present the Client with a completed Direct Debit Mandate as part of the Agreement. The Client agrees to cooperate with Malbec to facilitate payment through Direct Debit. Payments made in any other manner than through Direct Debit, shall remain at the discretion of Malbec. Where payment of amounts invoiced through Direct Debit has not taken place for any reason then the Client must make alternative arrangements to make payment within 5 Business Days;
9. All payments required to be made pursuant to the Agreement by the Client shall be made in Pounds Sterling GBP (or such other currency as agreed between the Parties) in cleared funds to such bank as Malbec may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as Malbec is required to deduct or withhold by law;
10. Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be deferred to the nearest Business Day;
11. Without prejudice to sub-Clause 12.2.1 of these Terms and Conditions, any sums which remain unpaid following the date on which they were due for payment shall incur interest on a daily basis at 8% per annum above the base rate of the Bank of England from time to time until payment is made in full of any such outstanding sums.
12. The Client may not cancel their payment obligations and the Client is not entitled to a refund of Fees paid to Malbec.
13. Without prejudice to the provisions of clause 5.2 of these Terms and Conditions, Malbec shall, upon providing no less than 90 days’ notice (the "Fees Increase Notice"), be entitled to increase the Fees payable by the Client. If no Fees Increase Notice is given to the Client, the Agreement will continue on the same pricing as that of the previous Term. The fee increase must not take effect within the Initial Term. The Fees Increase Notice must inform the Client:
  1. of their right to terminate the contract pursuant to either of (i) clause 12.5 of these Terms and Conditions (as a result of receipt of the Fees Increase Notice), or (ii) clause 12.1 (on not less than ninety days notice);
  2. of the date of expiry of the present Term; and
  3. that if the Agreement is not terminated then it will automatically renew upon the expiry of the present Term for a further Term of 12 months pursuant to clause 12.1.
14. Each Party shall:
  1. keep, or procure that there are kept, such records and books of accounts, as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated;
  2. at the reasonable request of the other Party, allow that Party or its agent to inspect those records and books of accounts and, to the extent that they relate to the calculation of those sums, to take copies of them.
Suspension of the Services
1. Without limiting any rights under this Agreement and without any liability to the Client, Malbec may suspend the Services if the Client either:
  1. Cancels its Direct Debit instruction for payment of the Fees; or
  2. Defaults on its payment obligations of Fees; or
  3. if Malbec reasonably believes that the Client is in breach of the Agreement or is likely to be in breach of the Agreement while Malbec investigates the suspected breach. Any investigation will be carried out promptly and the Client agrees to cooperate with Malbec in connection with any such investigation.
2. If, following suspension of the Services, the Client makes payment of the Fees due and the Client sets up a new Direct Debit instruction for payment of Fees, Malbec will resume provision of the Services. For the avoidance of doubt, the Services will not be resumed where the Agreement has terminated under Clause 12 of these Terms and Conditions.
3. Where Malbec suspends the Services due to non-payment of Fees, the Client must pay a reinstatement fee of £250.00.
4. Malbec can suspend or restrict the Service to carry out necessary planned maintenance services or during any technical failure of the Services, where it is necessary to protect the security of the Services or the data or Malbec’s systems, provided that in each case, Malbec will aim to keep all service suspensions to a minimum. Malbec shall endeavour to give the Client at least 8 hours’ prior notice of any planned maintenance.
5. Any suspension of the Services will not affect the Client’s obligation to pay the Fees due during any period of suspension.
Liability, Indemnity and Insurance
1. Malbec shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance.
2. In the event that Malbec fails to perform the Services with reasonable care and skill, it shall carry out any and all necessary remedial action at no additional cost to the Client.
3. The total liability of Malbec to the Client under the Agreement in respect of all claims in any year shall be limited to the aggregate amount of Fees paid by the Client for that calendar year.
4. Malbec shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to comply with any instructions given by Malbec or for any error, inaccuracy or omission in the output of the Services based on any inaccurate or incomplete information which the Client has provided to Malbec.
5. To the extent permitted by law, Malbec shall not be liable to the Client (or any party claiming through the Client) in contract (including under an indemnity), tort, breach of statutory duty or otherwise for any:
  1. loss of profits, opportunity, revenue, data, goodwill, business or anticipated savings, pure economic loss, loss of value of equipment, or expectation loss; or
  2. any indirect, consequential, special, punitive or exemplary loss or damage, even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the Parties, resulting from access to the Services or any interruption to access to the Services.
6. The Client shall indemnify Malbec against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment, Malbec Materials or Malbec Technology (including that belonging to any third parties appointed by Malbec), caused by the Client or its agents or employees.
7. The Client shall defend, indemnify and hold harmless Malbec against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that in case of any such claim:
  1. the Client is given prompt notice of any such claim;
  2. Malbec provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
  3. the Client is given sole authority to defend or settle the claim.
8. Malbec shall not be liable to the Client or be deemed to be in breach of the Agreement, by reason of any delay in performing, or any failure to perform its obligations if the delay or failure is due to any cause beyond Malbec’s reasonable control, including the actions of third party suppliers to Malbec or defects in the products or services so supplied to Malbec, equipment failure, or changes to third party operating systems, web browsers or other software used by Malbec or the Client in providing, accessing or interfacing with, the Services.
9. Nothing in these Terms and Conditions nor in the Agreement as a whole shall limit or exclude Malbec’s liability for death or personal injury caused by the negligence of Malbec.
Remedy of defects
In the event any defects in the Services appear, Malbec shall act as promptly as it is reasonably able to rectify any and all such defects and shall do so at no cost to the Client.
Confidentiality
1. Each Party undertakes that, except as provided by sub-Clause 9.2 of these Terms and Conditions or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and indefinitely after its termination:
  1. keep confidential all Confidential Information;
  2. not disclose any Confidential Information to any other party;
  3. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
  4. not make any copies of, record in any way or part with possession of any Confidential Information; and
  5. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers do any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 9.1.1 to 9.1.4 above of these Terms and Conditions.
2. Either Party may disclose any Confidential Information to:
  1. any sub-contractor or supplier of that Party;
  2. any governmental or other authority or regulatory body; or
  3. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case, that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 9.2.2 or any employee or officer of any such body) obtaining and submitting to the other Party, a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 9 of these Terms and Conditions, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
3. The Client acknowledges that details of the Service specified in the Order Form, including Fees, constitute Confidential Information.
4. Malbec acknowledges that documentation belonging to the Client and the Client Materials constitute Confidential Information.
5. The provisions of this Clause 9 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
6. The Client acknowledges that there is a risk that documents and information transmitted to and from Malbec by email may be read by unauthorised third parties. Malbec does not accept any responsibility for any breach of data arising from any such data transfer.
Intellectual Property
1. Malbec and its licensors retain the Intellectual Property Rights to Malbec Technology, Malbec Materials and the Services. All Intellectual Property Rights in the Client Materials belong to the Client.
2. Malbec warrants to the Client that it has the right to permit their Agents to access and use the Services and that their use of the same in accordance with the Agreement shall not infringe third party Intellectual Property Rights.
3. The Client grants Malbec:
  1. a non-exclusive licence to store, copy and otherwise use the Client Materials for the purposes of performing the Services under the Agreement; and
  2. a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, correction or other feedback provided by the Client in relation to the Services.
4. Malbec may include the text and logo ‘Malbec Limited’, or any substitute Malbec branded text and/or logos as Malbec shall determine from time to time, at the footer of the Business Client branded pages of the Services.
Force Majeure
No Party to the Agreement shall be liable for any failure or delay in performing their obligations, where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, DDos attack, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
Term and Termination
1. The Agreement shall commence on the Commencement Date and shall continue for an initial period of twelve months (’Initial Term’) at which point it will be renewed automatically for successive periods of twelve months (each 12 month period being a ‘Subsequent Term’) unless, at least thirty (30) days prior to the Renewal Date, either party gives the other party written notice of its intent not to continue the contractual relationship. Where the Client gives notice of termination to Malbec, all outstanding Fees under the Agreement become payable within seven calendar days from the date of the notice, at which point Malbec may suspend the Services if the said Fees remain unpaid. During any Subsequent Term, the terms of the Agreement as at the end of the Initial Term (or, where applicable, the end of the preceding Subsequent Term) shall remain in effect, save as subsequently varied in accordance with the terms of the Agreement or by an Agreement in writing of both parties.
2. Malbec may immediately terminate the Agreement by giving written notice to the Client if:
  1. any sum owing to Malbec by the Client under any provisions of the Agreement, is not paid within 14 Business Days of the due date for payment;
  2. the Client commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice that provides full particulars of the breach and requires the breach to be remedied;
  3. an encumbrancer takes possession, or where the Client is a company, a receiver is appointed, of any of the property or assets of the Client;
  4. the Client makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
  5. the Client, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom, effectively agrees to be bound by or assume the obligations imposed on the Client under the Agreement);
  6. anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Client;
  7. the Client ceases, or threatens to cease, to carry on business; or
  8. control of the Client is acquired by any person or connected persons not having control of the Client on the date of the Agreement. For the purposes of this Clause 12, "control" and "connected persons" shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
3. The Client must not do or omit to do anything nor permit any circumstances to arise which leads to Malbec having the right to terminate the Agreement pursuant to clause 12.2 of these Terms and Conditions.
4. For the purposes of sub-Clause 12.2.2, a breach shall be considered capable of remedy if the Client can comply with the provision in question in all respects.
5. Notwithstanding any other provision of these Terms and Conditions, the Client may within 30 days of receiving a Fees Increase Notice give Malbec no less than 60 days notice in writing that it is terminating the Agreement.
6. The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Effects of Termination
Upon the termination of the Agreement for any reason:
1. all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect, including clauses 9, 10.3, and 14 of these Terms and Conditions;
2. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination, or any other right to damages or other remedy which any Party may have, in respect of any breach of the Agreement which existed at or before the date of termination;
3. subject as provided in this Clause 13 of the Terms and Conditions and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and
4. each Party shall (except to the extent referred to in Clause 9 of these Terms and Conditions) immediately cease to use, either directly or indirectly, any Confidential Information;
5. all licenses and permissions granted to the Client under the Agreement shall immediately terminate;
6. the Client shall immediately stop using the Services, failing which the Client may become liable to pay a penalty to Malbec for unauthorised use of the Services, calculated on the basis of the Client’s regular Fees and reflecting the extend of unauthorised use.
7. the Client will have responsibility for removing any Client Materials. Malbec may following a period of 30 days from the Termination Date, delete and destroy the Client Materials.
Liquidated Damages
1. For the purposes of clause 14, the "Pricing Terms Commencement Date" shall be the latter of the Commencement Date, and any Renewal Date.
2. This clause 14 shall apply only where there has been at least one full calendar month between the Pricing Terms Commencement Date and the Termination Date.
3. Upon termination of the Agreement for reason of a breach of the Agreement by the Client (including a breach of clause 12.3 of these Terms and Conditions) then the Monthly Subscription Fee which would have fallen due in the remainder of the Term of the Agreement, multiplied by 0.95, shall become immediately due and payable to Malbec by the Client as liquidated damages;
No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
Personal Information
1. Each Party must use any Personal Information of which it becomes aware in connection with this Agreement in accordance with the Privacy Law.
2. The Client must ensure that any collection, processing, use, disclosure and transfer by it and/or its users, employees and contractors of Personal Information in connection with the performance of its obligations under this Agreement complies with all applicable Privacy Law.
3. The Client must take all necessary steps to ensure that the Personal Information held or accessed by it in connection with this Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure (Data Breach). The Client will promptly give written notice to us of any actual or suspected Data Breach and will provide information, assistance and other cooperation as requested by us in respect of the Data Breach.
4. The Client must co-operate with our reasonable requests or directions relating to the security, use, disclosure, and transfer of Personal Information, our legal obligations relating to the Personal Information, complaints relating to the Personal Information and the rights of Client and any Business Clients to access and correct the Personal Information or opt out of receiving any communications from or on behalf of the Client.
Costs
Subject to any provisions to the contrary, each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Set-Off
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
Assignment, novation of Agreement in event of transfer of business assets, and sub-contracting
1. Malbec has unrestricted rights to assign the benefit of this Agreement.
2. In the event of a transfer of all or the predominant part of the business assets involved in Malbec providing the Services, upon giving no less than 5 business days notice in writing to the Client Malbec may novate this Agreement to the transferee of such business assets so that such transferee stands in place of Malbec within the Agreement. The Client hereby agrees to any such novation and appoints Malbec to be the Client’s attorney in the Client’s name and on its behalf to execute such novation of this Agreement. This power of attorney is irrevocable and given by way of security to secure the performance of the Client’s obligation to agree to such novation of this Agreement. The Client agrees to ratify and confirm everything that Malbec does or arranges or purports to do or arrange in good faith in exercise of any power granted under this clause.
3. Malbec shall be entitled to perform any of the obligations undertaken by it through any other member of its Group or through suitably qualified and skilled sub-contractor
Time
All times and dates referred to in the Agreement shall be of the essence.
Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
Non-Solicitation
1. The Client shall not, for the Term of the Agreement and for a period of 12 months after the Termination Date, employ or contract the services of any person who is or was employed or otherwise engaged by Malbec at any time in relation to the Agreement without the express written consent of Malbec.
2. The Client shall not, for the Term of the Agreement and for a period of 12 months after the Termination Date, solicit or entice away from Malbec any customer or client where any such solicitation or enticement would cause damage to the business of Malbec without the express written consent of Malbec.
Third Party Rights
No part of the Agreement is intended to confer rights on any third parties.
Notices
1. All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
2. Notices shall be deemed to have been duly given:
  1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
  2. when sent, if transmitted by e-mail; or
  3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
  4. on the tenth business day following mailing, if mailed by airmail, postage prepaid. In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
Entire Agreement
1. This Agreement contains the entire agreement between the Parties and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the Parties.
2. Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
3. Malbec may update and amend these Terms and Conditions from time to time. Malbec shall provide 30 days’ notice ("Notice Period") of the changes to the Client and inform the Client of their contractual right to object to the change (where applicable). The Client shall thereafter be bound by the amended Terms and Conditions unless they have notified Malbec in writing within the Notice Period of their objection to the amended Terms and Conditions. The Client shall have no right to object where the proposed change to these Terms and Conditions is necessary to correct an obvious mistake, reflect legal obligations upon Malbec or changes to the Services being provided generally by Malbec and is no more detrimental to the Client as compared to the pre-existing Agreement than is minimally necessary to reflect the legal obligations on Malbec or the changes to the Services.
Counterparts
The Agreement may be entered into in any number of counterparts, and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
Severance
In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.
Law and Jurisdiction
The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English courts.