Standard Terms and Conditions
By accessing, using and operating the GC Grypp Platform, Products and/or Services the Customer acknowledges and agrees to the provisions of the Agreement.
a) Access Date is the date notified to you on which the products specified in the Order Confirmation are made available to the Customer for access and use.
b) Agreement is the Order Confirmation, these Standard Terms and Conditions and any other documents incorporated by reference in these Standard Terms and Conditions, together.
c) Authorised Users those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the GC Grypp Platform, Services, Products and the Documentation.
d) Confidential Information is any information disclosed by either Party (the Disclosing Party) to the other Party (the Receiving Party) that: a) if in readable form, is clearly marked as proprietary or confidential when disclosed or; b) if oral or visual, is identified as confidential or should reasonably be known to be Confidential Information. Confidential Information shall include, but not be limited to, the contents of this Agreement, trade secrets, customer information, supplier and business information and any software, technical and commercial knowhow, specifications, inventions and processes and in relation to Grypp Corp shall include the GC Grypp Platform.
e) Documentation means all instructions and other documentation relating to specifications or Customer’s access and use of the Products, as provided by Grypp Corp or its Third-Party Service Provider.
f) Effective Date is the date the Agreement is entered into by Grypp Corp and the Customer and becomes effective, as set out in the Order Confirmation.
g) Customer is the purchaser of the products specified in the order and the individual with whom the Agreement is made.
h) Fees are the Grypp Corp fees applicable to the Services and/or Products.
i) Scope and Service Levels are as stated in the Terms and Conditions.
j) GC Grypp Platform is the hosted, web-enabled communication and presentation tool including the software therein (as amended from time to time) to which access and use rights are granted to Customer by Grypp Corp hereunder.
k) GC Grypp Platform APIs are the Grypp Corp Platform application programming interfaces.
l) Grypp Corp is Grypp Corp Limited, a company registered in England and Wales with company number 10122502, whose registered office is at:The Old Granary, Cotton End, Southbridge,Northampton, NN4 8HP.
m) Party each of Grypp Corp and the Customer and the meaning of Parties shall be construed accordingly.
n) Products any products agreed in the Agreement to be supplied to the Customer by Grypp Corp.
o) Order Confirmation the Customer’sorder summary for the Products and/or Services provided by Grypp Corp.
p) Services are the services and activities outlined in the Scope and Service Levels that Grypp Corp shall provide to and/or on behalf of Customer related directly to access and use of the Products and the GC Grypp Platform including, but not limited to, the provision of the Products.
q) SLO the Service Level Objective as set out in the documentation which can be made available to Customer upon request.
r) Support Terms the terms of support as set out in the documentation which can be made available to Customer upon request.
s) Term shall be the period of time set forth in the Order Confirmation, commencing on the Access Date.
t) Third Party is any party that is not a Party to this Agreement.
u) Third Party Service Providers are the Grypp Corp designated service providers who provide services related to the GC Grypp Platform.
2) Access Grant
a) Payment Terms and Taxes. In consideration of the grant of the rights below, Customer shall pay to Grypp Corp the Fees in accordance with the payment terms set out in the Customer’s Order Confirmation. All sales, use, and excise taxes relating to the Fees shall be Customer’s responsibility. All foreign, federal, state, and local taxes, based upon or measured by Grypp Corp’s net income, property, or net worth shall be Grypp Corp’s responsibility. All Fees shall be paid without deduction or set off.
b) Grant of Limited Rights. Provided that Customer complies with all terms and conditions of this Agreement, including the payment to Grypp Corp of all Fees, and subject to the requirements of the Scope and Service Levels, Grypp Corp grants Customer the following rights:
i) Access and Use. Customer shall be granted the right for Authorised Users to access and use the GC Grypp Platform and Products as set forth in this Agreement (including the Scope and Service Levels) during the Term.
ii) Access Date. Effective immediately upon the Access Date, Customer’s access grant shall take effect and shall be a non-exclusive, non-transferable (except as expressly set forth herein), revocable, limited right to access and use the GC Grypp Platform and Products.
iii) Documentation. Use and copy the Documentation in connection with Customer’s authorized access and use of the GC Grypp Platform and Products, provided all copies of the Documentation contain all notices of copyright and ownership as contained in the original Documentation, if any. Any necessary or relevant minimum site requirements are specified in the Documentation,
and Grypp Corp reserves the right to change, modify or update the GC Grypp Platform, Products and Documentation from time to time.
c) Authorised Users. In relation to the Authorised Users, the Customer undertakes that: a) the maximum number of Authorised Users that it authorises to access and use the GC Grypp Platform, Products, Services and the Documentation shall not exceed the number of users purchased by the Customer, as set out in the Order Confirmation, as updated from time to time; b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; c) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Grypp Corp on written request at any time or times; d) it shall permit Grypp Corp to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Grypp Corp’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; e) if any of the audits referred to in Section 2c)d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
d) Additional Authorised Users. Subject to this Section 2d), the Customer may, from time to time during the Term, request to increase its number of Authorised Users, and Grypp Corp shall grant access to the GC Grypp Platform, Services and the Documentation to such additional Authorised Users, in accordance with the provisions of this Agreement. In such circumstances, the Customer shall notify the Grypp Corp in writing of its request and Grypp Corp shall evaluate and respond to the Customer with approval or rejection of the request. If approved, Grypp Corp shall send the Customer an Order Confirmation including the relevant Fee, payment terms and Access Date for such additional Authorised Users. If such purchase is made part way through the Term, such Fees shall be pro-rated from the Access Date for such additional Authorised Users for the remainder of the Term.
e) Restrictions. Customer may access and use the GC Grypp Platform, Products and Documentation in the conduct of its business operations, including outward-facing consumer sales and marketing activity, in support of its rights granted hereunder. Customer may not assign, transfer, sell, lease, rent, charge, distribute, provide, grant sub-access to, or otherwise deal in or encumber or make the GC Grypp Platform, Products or Documentation available to any Third Party. Customer may not modify, reconfigure or amend the GC Grypp Platform or Products or make any copies of the GC Grypp Platform or Products or any part of them without the prior written agreement of Grypp Corp. Customer acknowledges that it has no right to access the GC Grypp Platform or Products in source code form or in unlocked coding. Customer may not remove or alter any copyright or proprietary notice on the GC Grypp Platform or Products. ANY UNAUTHORIZED ACCESS OR USE OF THE GC GRYPP PLATFORM OR PRODUCTS WILL RESULT IN THE ABOVE RIGHTS BEING AUTOMATICALLY TERMINATED. GRYPP CORP RESERVES ITS RIGHT TO BRING ANY CLAIMS IN RELATION TO SUCH UNAUTHORISED ACCESS OR USE (INCLUDING FOR COPYRIGHT INFRINGEMENT, INJUNCTIVE RELIEF, AND/OR MONETARY DAMAGES).
f) Proprietary Rights. All rights of ownership, title, and interest in the GC Grypp Platform, Products, Documentation and any and all materials and/or documents created by Grypp Corp through its performance of this Agreement shall vest in and remain with Grypp Corp and/or its Third Party Service Provider and are protected by applicable copyright, patent, trademark, trade secret and other intellectual property laws worldwide. Grypp Corp grants to Customer only the rights to use the GC Grypp Platform and Products specified in this Agreement and no other rights in the GC Grypp Platform. All rights not expressly granted herein are reserved to Grypp Corp and/or its Third Party Service Provider. Customer agrees to take any reasonable steps necessary to protect the proprietary rights of Grypp Corp and/or its Third Party Service Provider in the GC Grypp Platform and the Documentation, including, but not limited to, the proper display of copyright, trademark, trade secret and other proprietary notices on the GC Grypp Platform and the Documentation. Customer agrees not to adapt, decompile, disclose, disseminate, distribute, sub-access, translate, or transmit, by any means or in any form, any part of the GC Grypp Platform or Documentation. All Documentation, Confidential Information and other material provided by Grypp Corp to the Customer remains the exclusive property of Grypp Corp but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition and shall be returned to Grypp Corp on request or in any event on expiry or termination of this Agreement for any reason and shall not be disposed of or used other than in accordance with the written instructions or authorization of Grypp Corp. The Customer shall take all such steps as from time to time may be necessary to protect the Confidential Information and proprietary rights of Grypp Corp and support Grypp Corp in relation to any claim brought against it in relation to the same.
g) Waiver. Customer hereby acknowledges and agrees that to the extent it may contribute in any way to the further development or modification of the GC Grypp Platform, be it by idea, suggestion, technical specification and/or otherwise, it shall not be entitled to claim ownership or proprietary rights in any form or manner whatsoever and any such claims are hereby forever released, barred and waived, regardless of their viability or incorporation into the GC Grypp Platform.If any intellectual property rights are in fact created and vest in the Customer, the Customer shall, on request from Grypp Corp, complete all such documentation and perform all such acts as are required to vest such intellectual property rights in Grypp Corp.
h) Customer Ownership. Customer shall maintain full and unencumbered rights of ownership to its customer data as well as to its Customer-provided content. Customer shall, as necessary, grant Grypp Corp the necessary and applicable use rights to access and use such customer data or Customer-provided content as it relates to providing the Services and/or the Products.
i) Services. Access to the GC Grypp Platform includes the provision by Grypp Corp of the Services referred to on the Order Confirmation, in particular the hosting, maintenance and support services provided by Grypp Corp’s Third Party Service Provider.
j) Additional Services. Except as set out in Section 2d), in the event that Customer desires other services and/or products not set out in this Agreement in relation to its access and use of the GC Grypp Platform, such services and/or products shall be provided under separate contract between Customer and Grypp Corp’s.
k) Prohibited Activities. Customer is specifically prohibited from accessing or using, or from permitting any Third Parties to access or use, the GC Grypp Platform for any of the following activities: (a) any action that imposes an unreasonable or disproportionately large load on the GC Grypp Platform’s infrastructure, including but not limited to “spam” or other such unsolicited mass e-mailing techniques; (b) disclosing or sharing the assigned confirmation numbers and/or passwords with any unauthorized Third Parties or using the assigned confirmation numbers and/or passwords for any unauthorized purpose; (c) attempting to decipher, decompile, disassemble or reverse engineer any of the software or HTML or other code comprising or in any way making up a part of the GC Grypp Platform; (d) uploading, posting, emailing or otherwise transmitting any information, content, or proprietary rights that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships; (e) violating any applicable local, state, national or international law, including, but not limited to, any regulations having force of law; (f) developing a product or service that competes with the GC Grypp Platform; (g) displaying any adult entertainment content, such as pornography, erotic content, sexually explicit content, prostitution or any other content not appropriate for general audiences; (h) offering or promoting gambling, games of chance involving the payment of any consideration or illegal sweepstakes or contests; (i) promoting, encouraging or facilitating any illegal activity, violating the law or the rights of any Third Party (including, without limitation, intellectual property rights, rights of privacy or rights of personality) and, (j) using any robot, spider, intelligent agent, other automatic device or manual process to search, monitor or copy the pages of the GC Grypp Platform or any Grypp Corp content without Grypp Corp’s prior written permission, provided that generally available Third Party web browsers such as Mozilla Firefox, Google Chrome or Microsoft Internet Explorer may be used without such permission.
j) Customer Obligations. The Customer shall: (a) notify Grypp Corp immediately if it becomes aware of any unauthorised use of the whole or any part of the GC Grypp Platform; (b) where applicable, procure for its own use at its own cost the necessary rights, copies and licences in respect of any Third Party products required to operate and run the GC Grypp Platform; (c) provide Grypp Corp with such assistance as required to enable it to perform its obligations under this Agreement; (d) not in any way suggest that the Customer’s products or services are endorsed by Grypp Corp; (e) use security measures to prevent unauthorised access to or use of the GC Grypp Platform and to protect and backup any Customer content; and (f) implement and at all times maintain an environment to support the GC Grypp Platform which complies with the recommended hardware specification issued by Grypp Corp from time to time. For the avoidance of doubt, Grypp Corp shall not be liable for any failure of the GC Grypp Platform to function in accordance with this Agreement in the event that the Customer has failed to comply with the obligation under Section 2.j(f).
k) Privacy. Customer acknowledges that, in order to enable Grypp Corp to manage the GC Grypp Platform and to provide the Products and/or Services, the Customer may pass to Grypp Corp, or Grypp Corp may access personal information relating to the Customer, its employees and/or its customers. To the extent that Grypp Corp accesses and processes personal data relating to customers of the Customer, the Customer acknowledges and agrees that the Customer is the data controller (as defined by the Data Protection Act 1998 (the Act) in respect of that personal data and that GC Grypp Platform is the data processor (as also defined by the Act). The Customer further warrants that it has obtained the consent of any individuals’ whose information it passes to Grypp Corp to pass that information to Grypp Corp and any Third Party for the purposes of managing, supporting and hosting the GC Grypp Platform. The Customer also warrants that it consents and has obtained consent for Grypp Corp and its Third Party Service Providers to process their personal data for those purposes. For further information on how Third Parties may use Customer personal data, please see the terms and conditions of the relevant Third Party software (see below).
l) Third Party Software. The GC Grypp Platform incorporates and uses various Third Party software, which is subject to additional terms and conditions which Grypp Corp shall make available to Customer. Customer must comply and must ensure that its employees, agents and subcontractors shall comply, with all such Third Party terms and conditions and all documents and any additional requirements referred to therein or otherwise notified to Customer from time to time. The Customer can access such Third Party terms by request and warrants to Grypp Corp on an ongoing basis that it has not breached any of the Third Party software terms.
m) Updates. Grypp Corp may make commercially reasonable updates to the GC Grypp Platform, the Products and/or Services from time to time. Updates are designed to improve, enhance and further develop the GC Grypp Platform and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. In the event such updates require changes to the GC Grypp Platform APIs, Customer agrees to ensure that calls or requests Customer makes to the GC Grypp Platform are compatible with then-current GC Grypp Platform APIs. Without limiting the generality of the foregoing, Updates shall be made in accordance with Grypp Corp’s then-current standard updates management process, which will be communicated to Customer in writing.
3) Term, Termination and Suspension
a) Term and Termination. This Agreement shall take effect on the Effective Date and shall remain in effect from the Access Date for the Term unless terminated as follows: a) this Agreement will terminate immediately without notice upon Customer’s insolvency, assignment to creditors, appointment of a trustee or commencement of a proceeding seeking bankruptcy or where the Customer is unable to pay its debts, enters into liquidation (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding up, appoints a receiver, liquidator or similar, makes any composition or arrangement with its creditors, or anything similar to the foregoing in any jurisdiction; b) this Agreement will terminate immediately upon a breach of Sections 2 or 4 by Customer; c) this Agreement may be terminated by Grypp Corp in accordance with Section 5 or Section 6; d) this Agreement may be terminated by either Party in the event of a material breach of this Agreement that is not remedied or cured to the reasonable satisfaction of the non-breaching Party within thirty (30) days of providing written notice of such material breach; e) this Agreement may be terminated by Grypp Corp upon ninety (90) days prior written notice to the Customer at any time; f) this Agreement may be terminated immediately by Grypp Corp if it determines that the provision of the GC Grypp Platform is prohibited by applicable law or has become impractical for legal or regulatory reasons, or Grypp Corp is required to comply with any request of a legal or regulatory body; g) this Agreement may be terminated immediately by Grypp Corp if Customer breaches the terms of any Third Party software; or h) this Agreement may be terminated immediately by Grypp Corp if any agreement between Grypp Corp and its Third Party Service Providers expires, terminates, is suspended or requires amendment to the GC Grypp Platform. In the event that the Agreement has not been terminated prior to expiry of the Term, it shall renew automatically for consecutive twelve (12) month periods until terminated in accordance with this Agreement.
b) Consequences of Termination and Survival. Upon expiry or termination of this Agreement, all rights granted to the Customer under this Agreement shall cease and Customer shall (at its sole cost and expense), promptly cease accessing and using the GC Grypp Platform and the Documentation and Confidential Information in the possession (or under the control) of Customer and certify in writing to Grypp Corp that it has ceased access and use and that all copies of the GC Grypp Platform, Documentation and Confidential Information have been destroyed. The Customer must immediately pay any sums due under this Agreement (including all fees payable for the remainder of the unexpired duration of the Term) unless the Agreement is terminated by Customer pursuant to Sections 3a) sub-Section (d) (material breach) or by Grypp Corp pursuant to Sections 3a) sub-Sections (e) (termination for convenience), (f) (legal or regulatory requirements), (g) (breach of Third Party software terms) or (h) (amendment or end of agreement with Third Party). Sections 2d), 2e), 4 and 6 and any other provisions of this Agreement which expressly or impliedly survive termination or expiry shall survive expiry or termination of this Agreement for any reason.
c) Suspension. In addition to Grypp Corp’s right to terminate the Agreement, access and use of the GC Grypp Platform, Products and/or Services may be suspended in the following circumstances: a) during any unanticipated or scheduled or unscheduled downtime or unavailability for any reason; b) in the event of an attack on the GC Grypp Platform; c) if Grypp Corp considers suspension is reasonably necessary for legal or regulatory reasons; d) in the event that the Customer’s use of the GC Grypp Platform, Products and/or Services poses a security risk, adversely impacts the GC Grypp Platform or may subject Grypp Corp to liability; or e) for breach of this Agreement by the Customer (including without limitation any payment obligations). Upon suspension, the Fees will continue to be payable notwithstanding the suspension and all of the Customer’s rights in relation to the GC Grypp Platform, Products and/or Services shall terminate during the period of suspension.
4) Confidential Information
a) Use. Except as specified in this Section 4, the Receiving Party shall: a) use Confidential Information only for the purpose(s) set forth in this Agreement; b) restrict disclosure of Confidential Information to only employees that require such information to perform their responsibilities in connection with this Agreement; c) not disclose Confidential Information without prior written consent of the Disclosing Party; d) ensure that employees and any applicable Third Parties who access Confidential Information with the permission of the Disclosing Party comply with this Section 4; e) copy Confidential Information only as necessary and clearly mark copies as confidential; and f) not duplicate or reverse engineer any such Confidential Information.
b) Exceptions. Without granting any right of access, the Disclosing Party agrees that the restrictions outlined in this Section 4 shall not apply to any Confidential Information that: a) can be demonstrated to have been in the public domain prior to the date of disclosure; b) can be demonstrated to have been in the Receiving Party’s possession prior to disclosure; c) becomes part of the public domain through no act or omission of Receiving Party; d) is supplied to the Receiving Party by a Third Party not under an obligation of confidentiality; e) was independently developed by the Receiving Party without reference to or knowledge of Confidential Information as evidenced by written records; or f) is required by law, including the Freedom of Information Act and orders from courts of competent jurisdiction, to be disclosed, provided the Receiving Party uses diligent efforts to inform the Disclosing Party in writing as soon as reasonably possible in advance of any such disclosure.
a) Grypp Corp’s Warranties. Grypp Corp warrants that it is authorized to enter into this Agreement and that by doing so it is not in contravention of any other agreements into which it may have entered. Grypp Corp warrants to Customer that the GC Grypp Platform, as delivered by Grypp Corp, shall be free from viruses and, when properly accessed and properly used, shall operate substantially in accordance with the Documentation for a thirty (30) day period commencing as of the Access Date.
b) Remedies. Customer’s sole and exclusive remedy for a breach of the foregoing warranties shall be as follows: a) Grypp Corp shall either repair or replace any non-conforming element of the GC Grypp Platform or deliver a commercially reasonable workaround for the non-conformance; or b) if Grypp Corp determines, in its reasonable discretion, that neither repair nor replacement nor a workaround of the non-conforming element of the GC Grypp Platform is commercially practicable, Grypp Corp shall remove access and use rights to the non-conforming element of the GC Grypp Platform and thereupon, refund any Fees paid by Customer and which relate to the period between Grypp Corp becoming aware of the breach and deciding that a repair, workaround or replacement cannot be provided, in which event this Agreement shall immediately terminate. Such remedy shall be available if Grypp Corp is notified by Customer in writing of the alleged non-conformance during the applicable warranty period (and provided with sufficient information in relation to the same), is able to replicate the defect, and is afforded reasonable time to remedy/cure the breach. These warranties shall not apply to, and Grypp Corp shall have no liability for, any nonconformance caused by access to or use of the GC Grypp Platform that: i) has been modified by Customer or a Third Party; ii) has been used in combination with equipment or software other than that which is consistent with the Documentation or otherwise used operated improperly or in a manner which is not authorized or for any purpose for which it was not designed; iii) has been damaged or destroyed by misuse, abuse, or other external causes; iv) arises as a result of a failure by the Customer to obtain any Third Party licenses required to use the GC Grypp Platform (where applicable).
c) Extent of Warranty. Customer acknowledges that the GC Grypp Platform may contain both human and machine errors and will be based upon, and may incorporate, information (including Third Party information) that might not be correct or, if applicable, might fail to materialize or produce the results anticipated by Customer. Grypp Corp does not warrant that the GC Grypp Platform will perform error free or without interruptions, or will be free of bugs (and the Customer agrees that the existence of minor errors shall not constitute a breach of this Agreement), nor does Grypp Corp warrant that the GC Grypp Platform will meet Customer’s requirements or expectations, or that all errors or failures can or will be corrected. The Customer acknowledges that the GC Grypp Platform is provided “as is” and has not been developed to meet its individual requirements and that it is the Customer’s responsibility to ensure that the functions of the GC Grypp Platform as described in the Documentation meet its requirements. EXCEPT FOR THE WARRANTIES LISTED IN THIS SECTION, AND TO THE EXTENT PERMITTED BY LAW, GRYPP CORP EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR OTHER TERMS, EXPRESS OR IMPLIED, REGARDING THE GC GRYPP PLATFORM, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING.
d) Customer’s Warranties. Customer represents and warrants that: a) it is authorized to enter into this Agreement and that by doing so it is not in contravention of any other agreements that it may have entered. Customer agrees to bear the entire risk as to the adequacy and performance of the GC Grypp Platform. Customer expressly acknowledges its responsibility to adequately test the GC Grypp Platform in an environment that reasonably simulates Customer’s use environment prior to publicly using the GC Grypp Platform; b) it shall comply with all laws relating to its access and use of the GC Grypp Platform, including but not limited to laws governing mass-mailings/SPAM activities, privacy, opt-in/opt-out regulations required between Customer and its owners and recording communciations (if applicable). Such laws shall include, but not be limited to, the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003; and c) it has the right to use, transmit and distribute any content which it uploads, publishes or displays on the GC Grypp Platform and that such content shall not be unlawful, harassing, defamatory, libelous, pornographic, invade another’s privacy, infringe Third Party rights, contain viruses, interferes with the GC Grypp Platform, promote criminal activity or which in Grypp Corp’s reasonable opinion is objectionable or may expose it to liability. Grypp Corp may preserve and disclose such content where it considers it is reasonably necessary to comply with applicable laws, to enforce the terms of this Agreement or to protect its rights.
e) Third Party Software. The GC Grypp Platform uses Third Party software and data which is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of merchantability, fitness of a particular purpose and non-infringement or that the Third Party software or data is free of inaccuracies, errors, bugs or interruptions or is accurate or complete.
6) Indemnification and Limitation of Liability
a) Entire liability. This Section 6 sets out the entire liability of Grypp Corp (including acts or omissions or its employees, agents, consultants and subcontractors) in relation to any breach of this Agreement and any representation or tortious act or omission arising hereunder, to the extent permitted by law. Nothing in this Agreement excludes or limits liability where such exclusion or limitation on liability is not permitted by law. In particular, nothing in this Agreement shall seek to exclude or limit Grypp Corp’s liability for death or personal injury caused by negligence, for fraud, fraudulent misrepresentation or under Section 2 of the Sale of Goods and Services Act 1992.
b) Intellectual Property Indemnification by Grypp Corp. Subject to the provisions of this Section 6 (including for the avoidance of doubt Section 6(f)),Grypp Corp agrees to indemnify Customer against all liabilities, judgments, awards and costs arising out of or relating to any claim that Customer’s authorized access and use of the GC Grypp Platform and/or Products (as permitted herein) or any Grypp Corp’s content infringes or violates the copyright, trade secret, patent, or any other proprietary right of any Third Party, provided that Customer: a) notifies Grypp Corp promptly in writing of any claim or suit; b) gives Grypp Corp the sole right to control the investigation, preparation, defense, and settlement of such claim or suit; and c) gives Grypp Corp assistance and reasonable cooperation for the defense of same. Following notice of any claim or should Grypp Corp believe that the GC Grypp Platform may be the subject of an infringement claim, Grypp Corp may, in its discretion and at its option: (i) procure the right for Customer to continue to access and use the GC Grypp Platform; (ii) replace or modify the GC Grypp Platform to make it non-infringing; or (iii) terminate this Agreement. Grypp Corp will not be responsible or liable for any settlement it does not approve in writing.
c) Restrictions to Indemnification of the GC Grypp Platform. The foregoing obligations of Grypp Corp shall not apply and Grypp Corp will have no liability for any claim of infringement if: a) the GC Grypp Platform is accessed or used other than in accordance with the Scope and Service Levels and/or specifications or documentation; b) the GC Grypp Platform is modified after the Access Date by anyone other than Grypp Corp or its Third Party Service Provider; c) the GC Grypp Platform is combined with other products, services, processes, or materials; d) Customer continues the allegedly infringing activity after being notified of modifications that would have avoided the alleged infringement; or e) Customer’s access and use is not in accordance with this Agreement; provided such infringement would not have occurred but for such configuration or development, modification, combination, continued access and use, or improper use. Customer will defend, indemnify, and hold Grypp Corp harmless from and against all losses, costs, claims and against all damages, settlements, attorneys’ and legal fees and expenses relating to any claim of infringement excluded from Grypp Corp’s indemnity by the preceding sentence. This Section 6 states Grypp Corp’s entire liability and Customer’s exclusive remedy for infringement of the GC Grypp Platform and/or the Documentation. This Section shall survive the termination of this Agreement.
d) Indemnification by Customer. Customer agrees to indemnify Grypp Corp (its employees, affiliates, directors, subcontractors and representatives) against all liabilities, judgments, awards and costs arising out of or relating to any claim: a) that Grypp Corp’s access and use of the Customer-provided content infringes or violates the copyright, trade secret, patent, or any other proprietary right of any Third Party; b) relating to the Customer’s (or its employees or representatives) use of the GC Grypp Platform; or c) breach of applicable law.
e) Limitation of Liability. EXCEPT AS OTHERWISE SPECIFIED BELOW IN THIS PARAGRAPH, GRYPP CORP SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE LIABLE FOR LOSS OF PROFITS OR SAVINGS, LOSS OF OR CORRUPTION OF DATA OR INFORMTATION, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE GC GRYPP PLATFORM AND/OR THE PRODUCTS, EVEN IF GRYPP CORP HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE IN THIS PARAGRAPH (e) SHALL NOT APPLY TO LOSSES AGAINST WHICH THE PARTIES HAVE AGREED TO INDEMNIFY EACH OTHER PURSUANT TO THIS AGREEMENT.
f) Cap on Liability. GRYPP CORP’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO 50% OF THE FEES PAID BY THE END USER IN THE IMMEDIATELY PRECEDING 12 MONTH PERIOD OR IF SUCH PERIOD HAS NOT EXPIRED AN AMOUNT EQUAL TO 50% OF THE AMOUNT OF THE ACTUAL FEES PAID OR PAYABLE AT THE DATE ON WHICH THE RELEVANT ACT, OMISSION, OR BREACH OCCURRED.
g) Other Rights and Remedies. Nothing in this Agreement shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled. Each remedy or right of Grypp Corp under this Agreement is without prejudice to any other right or remedy of Grypp Corp whether under this Agreement or not.
h) Force Majeure. Grypp Corp shall have no liability under this Agreement if it is prevented from, or delayed in performing, its obligations under this Agreement or from carrying on its business by acts, events omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Grypp Corp or any other Party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown or plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
a) Assignment. Customer may not assign or in any manner transfer any of its rights or obligations under this Agreement to any Third Party without the prior written approval of Grypp Corp, which consent shall not be unreasonably withheld or delayed. Grypp Corp may assign, transfer, charge, subcontract or otherwise dispose of this Agreement in whole or in part so long as (in relation to assignment) the assignee agrees in writing to assume and perform the Services and provide the Products, subject to the terms and covenants of this Agreement.
b) Governing Law and Jurisdiction. This Agreement will be governed by the laws of England. Each Party hereby submits itself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive jurisdiction of the English Courts.
c) Notices. All notices given by either Party under the terms of this Agreement shall be in writing and shall be hand delivered or sent by an express traceable carrier, addressed to the Party at the address set forth at the beginning of this Agreement or at such other address as may be designated by a Party in writing. All such notices shall be deemed given upon hand receipt or upon delivery as per traceable report.
d) Partial Invalidity; Conflicts. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected. In such event, the Parties agree to make a good faith attempt to formulate with one another a lawful and enforceable provision to replace the offending provision that, to the extent practicable, accomplishes the intent and objectives of the offending provision. The terms of this Agreement shall prevail over any other documents between the Parties in the event of a conflict and in the event of any inconsistency between the Front Sheet and the Standard Terms and Conditions, the order of preference shall be as follows: Front Sheet then the Standard Terms and Conditions.
e) Headings and Changes. Titles and headings are used for ease of reference only and do not affect the interpretation of this Agreement. Any changes to this Agreement must be in writing and signed by both Parties. For the avoidance of doubt, any additional or different terms which a Party seeks to impose in any order or written communication are void unless agreed and signed by both Parties.
f) Export Restrictions. Customer agrees to comply with any applicable international and national laws that apply to the GC Grypp Platform, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S., the U.K. and other governments.
g) Equitable Relief. The Parties acknowledge that the unauthorized use or disclosure of any proprietary and Confidential Information (including without limitation details of the GC Grypp Platform) would cause irreparable harm and significant injury that would be difficult to ascertain and that would not be compensable by damages alone. The Parties therefore agree that if Customer accesses or uses the GC Grypp Platform in a manner not authorized by this Agreement, or the Receiving Party discloses Confidential Information of the Disclosing Party in a manner not authorized by this Agreement, the injury caused is irreparable and that the injured Party shall be entitled, without waiving any additional rights or remedies available to it under this Agreement, at law, in equity, or by statute, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction without the necessity of filing a bond (where applicable).
h) Legal and Attorneys’ Fees. The Party prevailing in the enforcement of the provisions of this Agreement, including collection of any amounts due hereunder, shall be entitled to recover from the other Party, in addition to all sums to that it is entitled or any other relief, at law or in equity, reasonable and necessary attorneys’ fees and any court costs.
i) Limit on Actions. Unless prohibited by local law neither Party will commence a legal action more than two (2) years after the cause of action arose. A cause of action arises when the injured Party actually learns of or, through the exercise of reasonable care, could have learned of the right to bring an action, whichever is earlier.
j) Ambiguities Construed Neutrally. The doctrine that any ambiguity contained in a contract shall, where permitted by law, be construed against the Party whose counsel has drafted the contract is expressly waived by each of the Parties with respect to this Agreement.
k) Reference and Press Releases. Customer agrees to provide assets for a case study to be posted by Grypp Corp on the Grypp Corp website and other publications the language of which will be agreeable to both Parties, such agreement not to be unreasonably withheld or delayed. Assets will include but are not limited to a logo, application images, and quotes / testimonials from a representative of Customer executive management. Grypp Corp will have the right to maintain a link to the case study for the duration of the Agreement. Customer agrees to participate in a marketing planning meeting with Grypp Corp, usually held within six (6) months of general release/public launch of the Customer version of the GC Grypp Platform. Both Parties agree not to issue any press releases without the prior written approval of both Parties.
l) Complete Agreement. This Agreement, including these Standard Terms and Conditions, and the related Order Confirmation, constitutes the entire agreement between the Parties concerning Customer’s access and use of the GC Grypp Platform and/or Products, and supersedes all previous communications, representations, proposals and agreements, either oral or written regarding the subject matter of this Agreement. No action or omission by either Party shall constitute a waiver of any right or duty afforded either Party under this Agreement, nor shall any such action or omission constitute an approval of any breach under this Agreement, unless confirmed in writing.
m) Third Parties. This Agreement shall not be enforceable by any Third Party.