Talkout - General Terms & Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause applyin these Conditions

“Applicable Laws” means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.

(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Talkout is subject.

“Applicable Data Protection Laws” means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Talkout is subject, which relates to the protection of personal data.

“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to access the Platform and use Talkout’s Apps and the Documentation in connection with the Services.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Conditions” these terms and conditions set out in clause 1 (Definitions and Interpretation) to clause 23 (Governing Law and Jurisdiction) (inclusive) and in the Schedule to these terms and conditions.

“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6.

“Contract” the contract between the Customer and Talkout for the supply of the Services in accordance with the Order Form and these Conditions.

“Contract Year” means a 12-month period commencing with the Start Date or any anniversary of it.

“Customer” means the organisation referred to in the Order Form who purchases a subscription to access the Services from Talkout.

“Customer Data” means the data inputted by the Authorised Users, or Talkout on the Customer’s behalf in connection with
the Services including the Customer Personal Data.

"Customer Personal Data" any personal data which Talkout processes in connection with the Contract, in the capacity of a processor on behalf of the Customer.

“Documentation” means any documentation made available to the Authorised Users by Talkout which sets out a description of the Services and the user instructions for use of the Platform and/or the Talkout Apps in connection with the Services.

“EU GDPR” the General Data Protection Regulation ((EU) 2016/679).

“Initial Subscription Term” means the initial subscription term as referred to in the Order Form which includes any Trial Period.

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

“Normal Business Hours” 9.00 am to 5.00 pm Greenwich Mean Time, each Business Day.

“Order Form” means the Order Form signed by the Customer and Talkout in connection with the provision of the Services.

“Platform” Talkout’s infrastructure and cloud computing platform and runtime environment to be used by the Customer and its Authorised Users in connection with the receipt of the Services.

“Purpose” the purposes for which the Customer Personal Data is processed, as set out in clause 5.8(a).

“Renewal Period” means the period described in clause 12.1.

“Services” means the subscription services provided by Talkout to the Customer under the Contract as referred to in the Order Form.

“Software” the Platform and/or Talkout’s Apps.

"Start Date” means the date referred to as the Start Date on the Order Form.

“Subscription Fees” means the subscription fees payable by the Customer to Talkout for the User Subscriptions as referred to in the Order Form and in these Conditions.

“Subscription Term” has the meaning given in Clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

“Talkout” means Talkout Holding Limited, a company incorporated in England and Wales and having its registered office at 4 Vicarage Road, Edgbaston, Birmingham B15 3ES.

“Talkout’s Apps” any applications provided by Talkout for the Authorised Users’ use in connection with the provision of the Services, including both source code and object code.

“Talkout Personal Data” any personal data which Talkout processes in connection with the Contract, in the capacity of a
controller.

“Trial” the opportunity granted by Talkout for the Customer to access the Software and/or use the Services free of charge so that the Customer can evaluate whether the Software and/or the Services meet its needs.

“Trial Period” the duration of the Trial as agreed to by Talkout.

“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Contract.

“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.

“UK GDPR” has the meaning given to it in the Data Protection Act 2018.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.5 Any words following the terms including, include, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. USER SUBSCRIPTIONS

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with the Contract or subject to Talkout granting the Customer a Trial and subject to the other terms and conditions in the Contract, Talkout hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to access the Platform and use Talkout’s Apps, the Services and the Documentation during the Subscription Term or the Trial Period, as applicable, solely for the Customer’s internal business operations (in their ordinary course).

2.2 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 and the Documentation shall not exceed the number of User Subscriptions it has purchased 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; and

(c) each Authorised User shall keep a secure password for their use of the Services and the Documentation and that each Authorised User shall keep their password confidential.

2.3 The Customer shall not and shall ensure that the Authorised Users shall not access, store, distribute or transmit any material during the course of its or their use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images or promotes unlawful violence;

(d) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(e) is otherwise illegal or causes damage or injury to any person or property;

and Talkout reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Authorised Users’ access to any material that breaches the provisions of this clause.

2.4 The Customer shall not and shall ensure that its Authorised Users shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:

(i) 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 the Documentation in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Services, the Software and/or the Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation; or

(c) use the Services, the Software and/or the Documentation to provide services to third parties; or

(d) subject to clause 18, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorised Users;

(e) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this clause 2; or

(f) introduce, or permit the introduction of, any Virus into Talkout’s network and information systems.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Talkout.

2.6 The rights provided under this Clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

3.  ADDITIONAL USER SUBSCRIPTIONS

3.1 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Talkout shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Contract.

3.3 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 Talkout for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4.  SERVICES

4.1 Talkout shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of the Contract.

4.2 Talkout shall use all reasonable commercial endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Talkout has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.

5.  CUSTOMER DATA

5.1 For the purposes of this clause 5, the terms controller, processor, data subject, personal data, personal data breach and processingshall have the meaning given to them in the UK GDPR.

5.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

5.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:

(a) Talkout shall act as controller of the personal data set out in paragraph 1.1 of Part 1 of Schedule 1;

(b) Talkout shall process the personal data set out in paragraph 1.2 of Part 1 of Schedule 1 as a processor on behalf of the Customer; and

5.4 Should the determination in clause 5.3 change, then each party shall work together in good faith to make any changes which are necessary to Schedule 1.

5.5 By entering into the Contract, the Customer consents to (and shall procure all required consents, from its Authorised Users) in respect of all actions taken by Talkout in connection with the processing of Talkout Personal Data.

5.6 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Talkout Personal Data and Customer Personal Data to Talkout and/or lawful collection of the same by Talkout for the duration and purposes of the Contract.

5.7 In relation to the Customer Personal Data, Part 2 of Schedule 1 sets out the scope, nature and purpose of processing by Talkout, the duration of the processing and the types of personal data and categories of data subject.

5.8 Without prejudice to the generality of clause 5.2 Talkout shall, in relation to Customer Personal Data:

(a) process that Customer Personal Data only on the documented instructions of the Customer, unless Talkout is required by Applicable Laws to otherwise process that Customer Personal Data. Where Talkout is relying on Applicable Laws as the basis for processing Customer Processor Data, Talkout shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Talkout from so notifying the Customer on important grounds of public interest. Talkout shall inform the Customer if, in the opinion of Talkout, the instructions of the Customer infringe Applicable Data Protection Laws;

(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that any personnel engaged and authorised by Talkout to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Talkout), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless Talkout is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 5.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Talkout; and

(g) maintain records to demonstrate its compliance with this clause 5 and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.

5.9 The Customer hereby provides its prior, general authorisation for Talkout to:

(a) appoint processors to process the Customer Personal Data, provided that Talkout:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Talkout in this clause 5;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Talkout; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Talkout's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Talkout for any losses, damages, costs (including legal fees) and expenses suffered by Talkout in accommodating the objection.

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Talkout shall ensure that all such transfers are effected in accordance with Applicable Data Protection Law. For these purposes, the Customer shall promptly comply with any reasonable request of Talkout, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

5.10 Either party may, at any time on not less than 30 days' notice, revise clause 5.9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

6.  TALKOUT’S OBLIGATIONS

6.1 Talkout undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care and that the Software will function substantially in accordance with the Documentation.

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or the Software contrary to Talkout’s instructions, or modification or alteration of the Services or the Software by any party other than Talkout or Talkout’s duly authorised contractors or agents. If the Services or the Software do not conform with the foregoing undertaking, Talkout will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1.

6.3 Talkout:

(a) does not warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free; or that the Services, the Software, the Documentation and/or the information or functionality obtained by the Customer through the Services will meet the Customer’s requirements; and

(b) 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, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.4 The Contract shall not prevent Talkout from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

7.  CUSTOMER’S OBLIGATIONS

The Customer shall:

(a) provide Talkout with:

(i) all necessary co-operation in relation to the Contract; and

(ii) all necessary access to such information as may be required by Talkout; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

(c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Talkout may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services, the Software and the Documentation in accordance with the Contract and shall be responsible for any Authorised User causing a breach of the Contract;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Talkout to perform its obligations under the Contract, including, without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by Talkout from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Talkout’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

8.  CHARGES AND PAYMENT

8.1 The Customer shall pay the Subscription Fees to Talkout in accordance with this clause 8.

8.2 Talkout shall invoice the Customer for the Subscription Fees monthly in arrears and the Customer shall pay the payments due under each invoice within 14 days of receipt.

8.3 If Talkout has not received a payment due to it under the Contract by its due date, then, without prejudice to any other rights and remedies of Talkout:

(a) Talkout may, without liability to the Customer, disable the Customer’s and the Authorised Users’ passwords, accounts and access to all or part of the Services and the Software and Talkout shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at a monthly rate of 1.5% commencing on the due date and continuing until fully paid, whether before or after judgment; and

(c) if non-payment continues for a period of more than 60 days, Talkout may, at its option, delete all the Customer Data.

8.4 All amounts and fees stated or referred to in the Contract:

(a) shall be payable in the currency in which they are invoiced;

(b) are non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to Talkout ’s invoice(s) at the appropriate rate, if applicable.

8.5 Talkout shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 by up to 10% at the start of each Renewal Period upon 30 days’ prior notice to the Customer.

9.  PROPRIETARY RIGHTS

9.1 The Customer acknowledges and agrees that Talkout and/or its licensors own all Intellectual Property Rights in the Services, the Software and the Documentation including in the product of any development and/or integration work that Talkout may carry out for the Customer including where any elements of such product were developed as a result of or using the Customer’s ideas, suggestions or other feedback supplied by the Customer. Except as expressly stated herein, the Contract does not grant the Customer any Intellectual Property Rights in or any other rights or licences in respect of the Services, the Software, the Documentation or of the product of any development and/or integration work that Talkout may carry out for the Customer.

9.2 Talkout confirms that it has all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under the Contract.

10.  CONFIDENTIALITY

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. 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.

10.2 Subject to clause 10.4, 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 the Contract.

10.3 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 provisions of the Contract.

10.4 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 and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5 The Customer acknowledges that details of the Services constitute Talkout’s Confidential Information.

10.6 Talkout acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7 Talkout may compile statistical information related to the performance of the Services for the purposes of improving the Software and Services.

10.8 Unless the Customer requests otherwise in writing, Talkout may include the Customer’s name and logo in its marketing materials and on its website.

10.9 The above provisions of this clause 10 shall survive termination of the Contract, however arising.

11.  LIMITATION OF LIABILITY

11.1 Except as expressly and specifically provided in the Contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. Talkout shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Talkout by the Customer in connection with the Services, or any actions taken by Talkout at the Customer’s direction;

(b) 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 the Contract; and

(c) the Services, the Software and the Documentation are provided to the Customer on an “as is” basis.

11.2 Nothing in the Contract shall limit or exclude the liability of Talkout:

(a) for death or personal injury caused by Talkout’s negligence;

(b) for fraud or fraudulent misrepresentation; or

(c) for any matter in respect of which it would be unlawful to limit or exclude liability.

11.3 Subject to clause 11.1 and clause 11.2:

(a) Talkout shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

(b) Talkout’s total aggregate 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 the Contract shall not exceed the cap.

11.4 In clause 11.3(b) and in this clause 11.4:

(a) cap. The cap is one hundred per cent (100%) of the total charges in the Contract Year in which the breach of contract, tort, duty, misrepresentation or other default attributable to Talkout occurred; and

(b) total charges. The total charges means all sums paid to Talkout by the Customer under the Contract in the Contract Year in which the breach of contract, tort, duty, misrepresentation or other default attributable to Talkout occurred.

12.  TERM AND TERMINATION

12.1 The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for such successive periods as specified in the Order Form (each a Renewal Period), unless:

(a) the parties have agreed in writing that the Contract shall be subject to a Trial and the Customer notifies Talkout in writing at least 7 days before the expiry of the Trial Period that it does not wish to receive the Services beyond the expiry of the Trial Period; or

(b) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(c) otherwise terminated in accordance with the provisions of the Contract;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other provisions of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;

(c) the other party   makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed;

12.3 On termination of the Contract for any reason:

(a) all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Software and/or the Documentation;

(b) the Customer shall immediately and permanently erase any Software made available or supplied by Talkout to the Customer and contained within any of the Customer’s platforms, networks or systems;

(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(d) Talkout may destroy or otherwise dispose of any of the Customer Data in its possession unless Talkout receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Talkout shall use reasonable commercial endeavours to deliver the back-up to the Customer within 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 Talkout in returning or disposing of Customer Data; and

(e) 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

13.  FORCE MAJEURE

Talkout shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, epidemic, pandemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of Talkout 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.

14.  VARIATION

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16. SEVERANCE

16.1 If any provision or part-provision of the Contract 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 the Contract.

16.2 If any provision or part-provision of the Contract is deemed deleted under clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.  ENTIRE AGREEMENT

17.1 The Contract 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.

17.2 Each party acknowledges that in entering into the Contract 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 the Contract.

17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

18.  ASSIGNMENT

18.1 The Customer shall not, without the prior written consent of Talkout, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

18.2 Talkout 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 Contract.

19.  THIRD PARTY RIGHTS

The Contract does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

20. COUNTERPARTS

The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

21. NO PARTNERSHIP

Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. NOTICES

22.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be: (a) delivered by hand to its registered office (if a company) or its principal place of business (in any other case); (b) sent by email to the relevant contact email address as stated by each party in or in accordance with the Order Form.

22.2 Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or (b) if sent by email at the time of the transmission provided that no bounceback message is received.  This clause 22 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution

23. GOVERNING LAW AND JURISDICTION

23.1 The Contract 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 law of England and Wales.

23.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

 

Schedule – Data Protection

Part 1 – Role of the parties

1.1 Where Talkout acts as a controller:

(a)when processing personal data contained within correspondence between the Customer’s staff (including Authorised Users) and Talkout’s staff and/or documents relating to the establishment, management, audit and operation of theContract including the Services, orders for Services and payment for the Services and any other communications whichTalkout may wish to rely on to establish its rights and liabilities under the Contract; and

(b) when processing the personal data of the Customer’s staff (including Authorised Users) for marketing purposes.

1.2 Where Talkout acts as a processor:

(a) save as set out in paragraph 1.1 of this Part 1 of Schedule 1, when processing the personal data of the Customer’s staff (including Authorised Users) and any other data subjects (other than Talkout’s staff) whose personal data is. inputted on or collected by the Platform and/or Talkout’s Apps in connection with the Contract.

Part 2 – Particulars of processing

1.1 Scope:

The collection and storage of the personal data of the Customer’s staff (including Authorised Users) on the Platform and/or
Talkout’s Apps.

1.2 Nature

Collecting and storing personal data on the Platform and on Talkout’s Apps.

1.3 Purpose of processing

To enable Talkout to deliver the Services and the Authorised Users to receive the benefit of the Services including access to the Platform and the use of Talkout’s Apps.

1.4 Duration of the processing

The duration of the Contract and such reasonable time after this period to enable Talkout to transfer or delete the relevant data or as otherwise agreed between the parties.

1.5 Types of personal data

Name, contact details, training data, work performance data and such other personal data as processed by Talkout as a data processor in connection with the Contract.

1.6 Categories of data subject

The Customer’s staff (including Authorised Users) and such other data subjects whose personal data is processed by Talkout as a data processor in connection with the Contract.

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