The following Terms of Service set out the Customer’s access to and use of the Services and form an integral part of the Agreement between Wire and the Customer. All capitalised terms used but not defined herein shall have the meanings given to them in the Agreement Details.
Definitions and Interpretation
Unless otherwise defined in the Agreement, the following definitions shall apply in the Agreement:
Affiliates: means any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with any entity.
Agreement: means collectively the Agreement Details, the Terms of Service (as this term is defined in the Agreement Details), Wire’s Privacy Policy located at https://ask-wire.com/, as it may be amended from time to time, and any orders executed or invoices issued pursuant to this Agreement.
Agreement Details: the cover agreement pertaining to the Agreement, executed by the Parties on the Effective Date.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
Billing Frequency: the frequency in which Wire shall bill the Customer, as set out in the Agreement Details.
Business Day: a day other than a Saturday, Sunday or public holiday in Cyprus.
Confidential Information: includes any data, document, knowledge, know-how or information in tangible or intangible form, whenever and however disclosed, relating to (a) with respect to both Parties: research, products, pricing, services, customers, pricing and bidding methods, plans for products or services or assets, sales techniques, processes and customer or supplier or contactor lists personnel, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, research marketing material and strategies, financial information, projections, statistics, operations sales estimates, business plans and performance results relating to the past, present or future, business activities or finances, business plans, bidding methods, and/or all information disclosed and marked as “confidential”, and (b) with respect to Wire, any information relating to the Services, Hosted Environment, and any Software provided hereunder, as well as, any derivatives thereto, the terms and conditions of this Agreement, and any other information that should have been reasonably understood to constitute confidential information.
Effective Date: the date of this Agreement.
Good Industry Practice: the deployment of the reasonable degree of care and skill, technical resources and innovations which is to be expected of professional and adequately resourced providers of services similar to the Service within the European Union.
Hosted Environment: Wire and/or its third party’s technical environment, required to operate and provide access to the relevant Services.
Initial Subscription Term: the initial term of this Agreement as set out in the Agreement Details.
Intellectual Property Rights: shall include without limitation: (a) any and all tangible and intangible rights, title and interest, whether registered locally or internationally and whether or not capable of being registered, and any application for any of the aforementioned as well as any common law rights in and to, works of authorship, including but not limited to copyrights, neighbouring rights, moral rights, and mask works, and all derivative works thereof, trademarks and trade names, Confidential Information, trade secrets and know-how, patents, designs, algorithms and other industrial property, (b) all other intellectual and industrial property rights whether arising by operation of law, contract, license, or otherwise, and (c) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
Material: any data or information or database in relation to real estate assets in whatever form, including images, still and moving, which has been combined or aggregated (wholly or partially) with other data or information or adapted accordingly and which is compiled by Wire (at its sole discretion), accessed and/or viewed by an Authorised User by subscribing to the Services.
Material Export Permit: Material permitted to be exported and/or downloaded and/or printed by an Authorised User and included in the Subscription Fees, as listed in the Agreement Details. Any Usage Fees will be charged by Wire in accordance with clause 6 and the Agreement Details.
Normal Business Hours: 8.00 am to 5.00 pm local Cyprus time, each Business Day.
Renewal Period: the period described in clause 5.
Services: the online subscription services provided by Wire to the Customer under this Agreement on the Hosted Environment via https://ask-wire.com/ or any other website notified to the Customer by Wire from time to time, which includes the services detailed in the Agreement Details.
Software: the online software applications on which the Services are provided as a software-as-a-service, (including, if applicable, any Updates and other developments provided by Wire at its sole discretion), developed in code form and owned by Wire and/or its Affiliates and/or its licensor(s) and licensed hereunder for use as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Wire for the User Subscriptions, as set out the Agreement Details.
Subscription Term: has the meaning given in clause 5 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services: has the meaning given in clause 7.5.
Usage Fees: the usage fees payable by the Customer for exceeding the Material Export Permit limit, as set out in the Agreement Details.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 6.1, as set out in the Agreement Details, which entitle Authorised Users to access and use the Services and the Material in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.
Wire Intellectual Property: all applicable Intellectual Property Rights in the Services, the compilation of the Material, Software, Hosted Environment and all other Confidential Information.
In this Agreement, unless the context otherwise requires:
Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the schedules. References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the relevant schedule.
Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
A reference to a law or statutory provision is a reference to it as amended, extended, or re-enacted from time to time and shall include subordinate legislation made from time to time under that law or statutory provision.
General
Wire has developed certain software applications and content platform operating under the trademark ‘Wire’ and/or ‘Ask Wire’ which is made available to subscribers via the internet on a pay-per-use basis for the purpose of accessing a collection of information, data analytics, data modelling and related resources in relation to real estate assets.
Wire has agreed to provide and the Customer has agreed to take and pay for Wire’s services in relation to Wire, subject to the terms and conditions of this Agreement.
User subscriptions and access rights
During the Subscription Term, Wire shall provide the Services to the Customer subject to the terms of this Agreement. The Services are provided on a subscription-based service and the Customer shall acquire the User Subscriptions listed in the Agreement Details. Only the Authorised Users are permitted to access and use the Service.
During the Subscription Term, and solely for Customer’s internal business use (which may include external use of designated components by Customer’s clients), Wire shall with the payment of the Subscription Fees, grant to the Customer a non-exclusive, non-transferable, revocable limited licence, without the right to grant sublicences, to (a) access and use the Services, and (b) access and view the Material and (c) download, store, print any Material permitted under Material Export Permit listed in the Agreement Details. Customer acknowledges and agrees that the use rights provided hereunder do not grant any rights not explicitly expressed.
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 Services, shall not exceed the number of User Subscriptions it has acquired; (b) it will not allow any User Subscription to be used by more than the one named 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 Materials.
Wire reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently any feature associated with the Service, with or without notice, except that Wire shall provide the Customer with thirty (30) days notice of any modification that materially reduces the functionality of the Service.
Wire reserves the right to temporarily suspend access to the Service for operational purposes, including maintenance, repairs or installation upgrades in accordance with Schedule 1. Wire will use best endeavours to minimise operational suspension, in order to minimise disruption to the Service.
Except for the limited use rights granted hereunder, the Customer acknowledges and agrees that it shall not assert any right, title, or interest in or to (a) the Services, the Software and/or Hosted Environment, (b) Wire Intellectual Property, or any portion thereof. All other such rights and interests, including any and all rights in Wire Intellectual Property (including any derivatives thereto), are expressly reserved, owned by and remain vested in Wire, its Affiliates and its third-party vendor(s).
Without limiting the foregoing, the Customer acknowledges and agrees that no rights or any other interests are provided to the Customer with respect to: (a) rights in or to the Hosted Environment, or Services, beyond those limited user rights specified herein, (b) rights to provide access or use of the Hosted Environment, Services and Materials, (c) rights to obtain possession of copies of any component of the Hosted Environment or the Software or any software used to provide or perform the Service, and only as expressly provided for in clause 3.1 and 3.2, or (iv) representations, warranties or other third party beneficiary or proprietary rights from any Wire vendor.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, in the event of any such unauthorised access or use, promptly notify Wire.
The Customer may only export Material for business use and analysis up to the Material Export Permit listed in the Agreement Details. The Customer may use any of the Material exported in its own reports or otherwise which may be shared with its Affiliates, business partners or clients at its sole responsibility.
Additional user subscriptions
Subject to clause 4.2, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Agreement Details.
If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Wire in writing. If Wire approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within ten (10) days of the date of Wire’s invoice, pay to Wire the relevant fees for such additional User Subscriptions as set out in clause 6 and the Agreement Details and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Wire for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
Subscription Term
This Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term, without the right to terminate such term without cause. The Parties agree that the Agreement can only be terminated with cause if any of the causes listed in clause 15 apply. Following the Initial Subscription Term, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless:
either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
otherwise terminated in accordance with the provisions of this Agreement.
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
In the event Customer requests additional User Subscriptions for the same Services as per clause 4.2, Wire may adjust the duration of the additional Subscription Terms to co-terminate with the Subscription Term for that Service.
Charges and payment
The Customer shall pay Wire the Subscription Fees for the User Subscriptions in accordance with this clause 6 and as specified in the Agreement Details.
Each instalment of the Subscription Fees shall be billed in accordance with the Billing Frequency as set out in the Agreement Details and shall be payable by the Customer (a) in advance immediately upon presentation of an invoice by Wire and (b) no later than thirty (30) days after the due date.
If, at any time whilst using the Services, the Customer exceeds the amount of Material Export Permits specified in the Agreement Details, Wire shall charge the Customer, and the Customer shall pay, Wire’s Usage Fees specified in the Agreement Details. For the avoidance of doubt, the Usage Fees are not included in the Subscription Fees and the Usage Fees shall be invoiced by Wire at the end of each month for which they apply, that is, when the Material Export Permit is exceeded by any Authorised User.
All amounts and fees stated or referred to in this Agreement (a) shall be payable in Euro; (b) are, subject to clause 15, non-cancellable; (c) non-refundable; and (d) are exclusive of value added tax, which shall be added to Wire’s invoice(s) at the appropriate rate.
Failure by the Customer to pay any invoice when it becomes due and payable, shall give the right to Wire, without prejudice to any other rights and remedies of Wire, to:
subject to clause 15.1, disable and/or suspend the Customer’s password, account and access to all or part of the Services and Wire shall, without liability to the Customer, be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3%, commencing on the due date and continuing until fully paid, whether before or after judgment.
No refunds or credits (whether for monthly or annual subscriptions) will be issued for downtime, or for periods unused with an active subscription.
Wire’s obligations
Wire undertakes that the Services will be performed with reasonable skill and care.
Wire will specify to the Customer procedures according to which the Customer may establish and obtain access to and use the features and functions of the Services, including, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures.
Wire hosts, operates and maintains the Hosted Environment, including all facilities, software and all other technical requirements necessary to provide access to and use of the Services to the Customer. Wire shall specify to the Customer the process and procedures according to which the Customer may establish and obtain access to and use the features and functions of the Services, including, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures.
Subject to clauses 3.4 and 3.5, access to the Services and maintenance of the Hosted Environment shall be in accordance with the service levels specified in Schedule 1. In addition to establishing and maintaining the Hosted Environment, Wire shall maintain the components of the Hosted Environment with all current updates that Wire deems necessary for the provision of the Services. Wire does not warrant that: (a) the Customer’s use of the Services will be uninterrupted, reliable and timely, (b) errors can be corrected, or that operation of the Service shall be error or Fault free. Wire 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 and the Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Wire will, as part of the Services, provide the Customer with Wire’s standard customer support services during Normal Business Hours for resolving errors which affect access to the Services, by submitting any inquiries via email to support@ask-wire.com or via Wire’s ticketing system or by telephone +357 22 222 550 (the “Support Services”). Emails and tickets sent outside of Normal Business Hours will be resolved within the next Business Day. In the event of a disaster or a critical incident that severely impacts service availability or client operations, Wire’s dedicated disaster response team will be mobilized immediately, regardless of the time or day. Support Services do not include (a) physical installation or removal of an API and any user documentation published by Wire; (b) visits to Customer’s premises; (c) any electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Service; (d) any work with any third party equipment, software or services; (e) any professional services associated with the Service, including, without limitation, any custom development, or data modelling.
At all times, Wire, shall (a) use Good Industry Practice in relation to information security and processing personal data as described in clause 9; (b) employ Good Industry Practice with respect to network security techniques, including firewalls, intrusion detection, and authentication protocols, vulnerability and patch management; and (c) ensure its hosting facilities use Good Industry Practices for security and privacy.
The Services and the Materials are provided on an “AS IS” and on an “AS AVAILABLE” basis, without warranties of any kind. Wire makes no representations and disclaims all other warranties, representations, or conditions, written or oral, or express, implied, or statutory, including any implied warranties of merchantability, title, interoperability, data accuracy, or fitness for a particular purpose with respect to any Material, product, dataset, service, support, or any components thereof. Without limiting the foregoing, Wire does not warrant that the Services, Material and the information obtained by the Customer through the Services will meet the Customer’s requirements, and that the Services and/or Material are suitable for or compatible with any of the Customer’s contemplated activities, business, devices, operating systems, browsers, software or tools or comply with any laws applicable to the Customer.
Customer’s obligations
The Customer shall observe all its obligations under this Agreement, including payment of the Subscription Fees.
The Customer shall:
shall ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
be responsible and ensure that Authorised Users are deemed responsible for maintaining the confidentiality and security of all access codes and passwords issued, and ensuring that each access code and password is only used by the individual authorised;
ensure that each Authorised User shall keep a secure password for his/her use of the Services, and if prompted by the Software, the Customer shall change such password no less frequently than quarterly and that each Authorised User shall keep his/her password confidential;
it shall maintain a written, up-to-date list of current Authorised Users and provide such list to Wire within five (5) Business Days of Wire’s written request at any time or times;
it shall permit Wire or its designated auditor to audit the Services in order to establish the name and password of each Authorised User to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Wire’s expense, and this right shall be exercised with reasonable prior notice;
if any of the audits referred to in clause 8.2(5) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Wire’s other rights, the Customer shall promptly disable such passwords and Wire shall not issue any new passwords to any such individual; and
if any of the audits referred to in clause 8.2(5) reveal that the Customer has underpaid Subscription Fees to Wire, then without prejudice to Wire’s other rights, the Customer shall pay to Wire an amount equal to such underpayment as calculated in accordance with the prices set out in the Agreement Details within ten (10) days of the date of the relevant audit.
The Customer undertakes that it shall not:
except as otherwise stated in this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or any other Wire Intellectual Property Rights in any form or media or by any means;
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
access all or any part of the Services to build a product or service which competes with the Services; or
use the Services to provide competing services to third parties; or
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Material, other than as provided under this clause 8; or
introduce or permit the introduction of any Virus or Vulnerability into Wire’s network and information systems.
The Customer shall not use the Services and/or the Material in a manner which: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) is otherwise illegal or causes damage or injury to any person or property; (d) violates and/or infringes any Confidential Information and/or any Wire Intellectual Property Rights. Wire reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s and any Authorised User access to any material that breaches the provisions of this clause 8.
Data protection
In this clause 9, the following expressions shall have the following meanings:
“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures” have the meanings as defined in the Data Protection Laws;
“Data Protection Laws” the Cyprus Data Protection Law No. 125(I)/2018 (as amended) and secondary legislation, directives, the EU General Data Protection Regulation (EU) 2016/679) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time applicable to the use of personal data;
“European Economic Area” or “EEA” means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;
“Security Incident” means any confirmed accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any personal data;
“Standard Contractual Clauses” means the Standard Contractual Clauses (processors) approved by European Commission Decision C (2010) 593 or any subsequent version thereof released by the European Commission (which will automatically apply);
“Sub-processor” means any Processor engaged by Wire who agrees to receive personal data pursuant to this Agreement from Wire; and
“Supervisory Authority” has the meaning given in the GDPR.
To the extent that Wire Processes any personal data pursuant to this Agreement and the personal data relates to data subjects in the EEA, the provisions of this clause 9 shall apply. The Parties acknowledge and agree that for the purpose of the Data Protection Laws, the Customer is the Controller and Wire is the Processor.
Each party will comply with all applicable requirements of the Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Laws.
Where required by applicable Data Protection Laws, the Customer will ensure that it has obtained/will obtain all necessary consents and notices in place to enable lawful transfer of the personal data to Wire for the duration and purposes of this Agreement.
Without prejudice to the generality of clause 9.3, where Wire processes any personal data on behalf of the Customer, Wire shall:
process personal data in accordance with Customer’s written instructions;
implement and maintain appropriate technical and organisational security measures to ensure a level of security appropriate to the risk, including as appropriate, the measures referred to in Article 32(1) of the GDPR;
upon becoming aware of a Security Incident, (a) notify Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide Customer (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident;
treat the personal data as confidential, and shall ensure that any employees or other personnel have agreed to protect the confidentiality and security of Personal data;
where applicable, use reasonable endeavours to assist the Customer, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
at the written direction of the Customer, and within ninety (90) days of the date of termination of the Agreement, delete or return personal data and copies thereof to the Customer on termination of this Agreement unless required by Data Protection Laws to store the personal data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
The Customer agrees that Wire may use sub-processors to process personal data pursuant to this Agreement, provided that:
Wire enters into a written agreement which imposes equivalent obligations on the Sub-processor with regard to their processing of personal data, as are imposed on Wire under this clause 9; and
the sub-processor’s agreement with the Wire terminates automatically on the termination of this Agreement.
All processing is done in accordance with the Agreement and Wire’s Privacy Policy (found at https://ask-wire.com/legal/privacy-policy, as amended from time to time). Wire shall at all times remain responsible for compliance with its obligations under this clause 9 and will be liable to Customer for the acts and omissions of any sub-processor as if they were Wire’s acts and omissions.
Wire commits to Processing personal data within the EEA. To the extent that the processing of personal data by Wire involves the export of such personal data to a third party in a country or territory outside the EEA, such export shall be:
to a country or territory ensuring an adequate level of protection for the rights and freedoms of Data Subjects as determined by the European Commission;
to a third party that is a member of a compliance scheme recognised as offering adequate protection for the rights and freedoms of Data Subjects as determined by the European Commission; or
governed by the Standard Contractual Clauses between the Customer as exporter and such third party as importer.
Third-party data providers
The Customer acknowledges that any Material presented and/or included in the Services is collected from third-party data providers which is in the public domain or is subject to permitted use by Wire. The display of any Material made available via the Services, does not mean, or imply that Wire endorses or approves or confirms the accuracy or correctness of the Material which has been collected via any third-party website or database.
The Parties acknowledge that Wire is an aggregator and provider of Material for general information purpose, which contain information/data received by third parties and Wire is not responsible for the content of any Material. Wire makes no representation, warranty or commitment (either expressly or implied) and shall have no liability or obligation whatsoever in relation to the content or use of any Material by the Customer, which results to any transactions completed, and any contract entered into by the Customer, with any third-party relying on such Material and/or use of the Services.
Intellectual Property Rights and other proprietary rights
The Customer acknowledges and agrees that Wire and/or its licensors and/or third-party vendors and/or third-party data providers (as the case may be) have proprietary rights and/or intellectual property rights over the Wire Intellectual Property. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Material and any Wire Intellectual Property Rights.
Wire confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
The Customer acknowledges that:
all Intellectual Property Rights in the Wire Intellectual Property are the property of Wire or its licensors, as the case may be; and
Wire or its licensors has or have made and will continue to make substantial investment in obtaining, selecting, coordinating, developing, presentation, compilation and supplying of the Material and the Services; and
it shall have no right in or to the compilation of the Material, except to the right to use the Material for business use and analysis including by using it in its own reports or otherwise, in accordance with the express terms of this Agreement.
Confidentiality
Each party may be given access to Confidential Information from the other party to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed).
Limitation of liability
Except as expressly and specifically provided in this Agreement: the Customer agrees that Wire does not provide advice or recommendations on the merits of any data and/or information shared by Wire during the provisions of the Services, and Wire shall bear no responsibility for the opinions or work or advice or data or information provided to the Customer via the Services, including any errors or omissions of any third-parties or sub-contractors.
the Customer assumes sole responsibility for results obtained from the use of the Services and the Material by the Customer and the Authorised Users, and for conclusions drawn and any business actions or decisions taken from such use. Customer assumes sole responsibility and entire risk as to the suitability and results obtained from use of the Service and/or Material, and any decisions made or actions taken based on the information contained in or generated by the Service. Customer is solely responsible for the preparation, content, accuracy and review of any documents, data, or output prepared or resulting from the use of the Services or the Material;
Wire shall have no liability for any damage caused by errors or omissions in any Material, information, instructions or scripts;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services and the Material are provided to the Customer on an “as is” and “as available” basis, without warranty of any kind.
Nothing in this Agreement excludes the liability of any Party for: (a) for death or personal injury caused by negligence; or (b) for fraud or fraudulent misrepresentation.
Subject to clause 13.1 and clause 13.2, Wire will not be liable under any circumstances for any (i) loss of profit, loss of business, loss of goodwill, loss of savings, claims by third parties, business interruption whether director or indirect in each case; or (ii) pure economic loss, indirect loss or consequential loss whatsoever and howsoever caused; or (iii) punitive or exemplary damages; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement or resulting from or in connecting with the use, misuse or inability to use the Service or Material, even if Wire has been advised of the possibility thereof.
Without limiting the foregoing, Wire’s total aggregate liability in contract (including in respect of the indemnity at clause 14.2), 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 the total Subscription Fees paid for the User Subscriptions during the six (6) months immediately preceding the date on which the claim arose, reduced by any amounts due to Wire.
Indemnity
The Customer shall defend, indemnify and hold harmless Wire 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 Customer’s use of the Services and/or Material, and shall reimburse Wire for any amounts awarded against Wire in judgment or settlement of such claims.
Wire shall defend, indemnify and hold harmless the Customer from any action based upon any valid claim that the Customer’s use of the Services as permitted under this Agreement infringes any valid third-party EU patent, copyright, trademark, database right or right of confidentiality, and shall reimburse the Customer for any amounts awarded against the Customer in judgment or settlement of such claims.
Notwithstanding the above, if the Service becomes, or in Wire’s opinion is likely to become, subject of such a claim of infringement, Wire shall be entitled, at Wire’s sole option, to either procure the right for Customer to continue to use the Service, or replace or modify it so that it becomes non-infringing. If neither of the foregoing is commercially and reasonably available to Wire, Wire may immediately terminate the Service and refund to Customer a pro rata refund of any remaining prepaid Subscription Fees applicable to those Services, without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall Wire have any obligation or liability hereunder for any claim resulting from or based on:
a modification of the Services or Material by anyone other than Wire; or
the Customer’s use of the Services or Material in a manner contrary to the instructions given to the Customer by Wire; or
the Customer’s use of the Services after notice of the alleged or actual infringement from Wire or any appropriate authority; or
use of the Service and the Material in conjunction with other products or services not provided by Wire or necessary for the operation of the Service, where such infringement would not have occurred but for such use.
Each party’s indemnification obligations hereunder are contingent upon the indemnified party providing the indemnifying party with (a) prompt written notice of the claim, (b) an opportunity for complete control of the defence of and the right to settle such claim, and (c) all available information, assistance, authority, and cooperation to enable the defence or settlement of such claim.
The foregoing state the Customer’s sole and exclusive rights and remedies, and Wire’s (including Wire’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
Termination
In the event the Customer (a) fails to pay Wire any amounts past due as per clause 6 and remains in default for more than ninety (90) days after being notified in writing to that effect, and/or (b) is in breach of clauses 8, 11.3 or 12 Wire shall have the right to immediately suspend without notice any or all related Services provided to the Customer hereunder.
Without affecting any other right or remedy available to it, this Agreement may be terminated as follows:
By Wire immediately if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ninety (90) days after being notified in writing to make such payment; or
By Wire immediately if the Customer is in breach of clause 8.4, 8.5, 11.3 and 12; or
By Wire by giving a two (2) Business Days’ notice to the Customer in accordance with clause 14.3; or
By either Party, if the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ninety (90) Business Days after being notified in writing to do so; or
By either Party, if the other Party makes an assignment of this Agreement for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy or insolvency; or
By either Party, by giving at least ninty (90) days’ notice before the end of the Initial Subscription Term or any Renewal Period in accordance with clause 5.1.1.
Upon termination of this Agreement, for any reason:
All fees due to Wire for the current Subscription Term and any other amounts due to Wire, shall be immediately paid;
all licences, any access and/or use rights granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
Wire may destroy or otherwise dispose of any of the personal data in its possession in accordance with its policies, unless Wire receives, no later than five (5) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the personal data. Wire shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Wire in returning or disposing of personal data; and
any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
The provisions herein which by their context and content are intended to survive termination or expiration of this Agreement shall so survive, including clauses 3.4,5, 8,9,12,13, 14, 15.3, 16.3, 16.7.
Miscellaneous
Force Majeure: Wire shall have no liability to the Customer 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 Wire or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
Waiver and Severability: (a) No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy; (b) if any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement; and (c) if any provision or part-provision of this Agreement is deemed deleted, the Parties shall negotiate in good faith to agree a replacement provision.
Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Notices: All notices under this Agreement shall be in writing and must be in English. Notices shall be deemed to have been duly given:
(a) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient at the last known address of such recipient; or
(b) when sent by email to the email addresses listed in the Agreement Details.
Assignment: The Customer shall not, without the prior written consent of Wire, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Wire may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Governing law and Jurisdiction: (a) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Cyprus. (b) Each party irrevocably agrees that the courts of Cyprus, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1: Service Levels
Definitions:
In addition to the capitalised terms defined in clause 1 of the Terms of Service, all capitalised terms used in this Schedule 1 shall have the definition ascribed to them in this paragraph 1 of Schedule 1. In the event of conflict between the definitions in clause 1 of the Terms of Service and the definitions ascribed herein, the latter shall prevail for the purposes of this Schedule 1:
“Scheduled Downtime” means any downtime scheduled to perform system maintenance, backup and upgrade functions for the Hosted Environment, and any other downtime incurred as a result of a Customer request. Wire will provide Customer with a minimum of seven (7) days advance notice of Scheduled Downtime.
Service Availability:
Wire shall use commercially reasonable efforts to ensure that the Hosted Environment will be available 24 hours per day, 7 days per week, excluding any Scheduled Downtime.
Scheduled Downtime will be scheduled in advance during off-peak hours and Wire shall post a notice on the application log-in screen to notify Customer administrator of any Scheduled Downtime that will exceed two (2) hours.
in cases of unscheduled maintenance that is required to be performed, Wire shall use reasonable endeavours to give to the Customer at least a 24-hour prior notice.
The duration of any downtime is measured, in minutes, as the amount of elapsed time from when the Hosted Environment is not accessible or does not permit Customer to log on, to when the Services permits Customer to log on and access the Hosted Environment.