ITRS Capacity Planner End User Terms

1.    INTRODUCTION

By using the software as a service (“SaaS”) and / or acknowledging receipt of the Notification Form, the end user (“End User” or “Customer”) agrees to these End User Terms and any terms set out in the Notification Form (together the “SaaS Terms”). Customer understands and agrees that Customer’s right to use the SaaS, whether obtained from ITRS or via an authorised ITRS Partner, is subject to Customer’s compliance with these SaaS Terms. ITRS reserves the right to amend these terms from time to time and will give notice to Customer of any material change and Customer will, where it has not communicated any reasonable written objection to ITRS, be deemed to accept such changes after thirty (30) days.

2.    DEFINITION

2.1.    “Affiliate” with respect to Customer, means any legal entity which Customer directly or indirectly Controls.
2.2.    “Agreement” means the SaaS Terms and any document expressly incorporated by reference therein.
2.3.    “Applicable Data Protection Law” means the EU General Data Protection Regulation (Regulation 2016/679) and any and all applicable national data protection laws made under or pursuant to the EU General Data Protection Regulation as each such law may be amended or supplemented from time to time.
2.4.    “Authorised Users” means Customer, its Affiliates and their employees and independent contractors, which access and use SaaS for or on behalf of Customer, provided that they are bound by terms and conditions no less restrictive than those contained in the Agreement and solely to the extent that they are acting on behalf of Customer or its Affiliates.
2.5.    “Authorised Use Limitation” means the limitation on usage of SaaS measured by the Billing Metric specified on the Notification Form and the permitted number of User Accounts.
2.6.    “Authorised ITRS Partner” means an entity having a valid, current authorisation from ITRS to market, offer and resell to Customer the right to use the SaaS. 
2.7.    “Billing Metric” means the metric for billing SaaS to Customer (e.g. number of physical and virtual servers and/or number of User Accounts etc.), as set out in the Notification Form.
2.8.    “Confidential Information” means any information, maintained in confidence by the disclosing Party (including any Group company), communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be deemed confidential or proprietary, including, without limitation, the SaaS components (including any software), the Documentation and any benchmark data and results produced.
2.9.    “Control” means ownership or control of greater than fifty per cent (50%) of an entity’s shares or control of the board of such entity by force of law or contract, or the equivalent.
2.10.    “Customer Application” means any program or other application developed, modified or adapted by Customer or any component of the SaaS modified or adapted by Customer that:
(i)    is designed to integrate and be used with SaaS, and / or
(ii)    allows users to request, update, manipulate, view, process or display Customer Data via SaaS;
2.11.    “Customer Data” means any information provided to ITRS by Authorised Users in the course of accessing and using SaaS and stored by ITRS in connection with SaaS (and over which ITRS and/or its subcontractors have control).
2.12.    “Documentation” means the documentation, technical specifications and/or user manuals, published by ITRS or any entity within ITRS group of companies that is made generally available for SaaS.
2.13.    “Force Majeure Event” means an event that arises out of causes beyond a Party’s control, including, without limitation, war, civil commotion, act of God, strike or other stoppage (whether partial or total) of labour, any law, decree, regulation or order of any government or governmental body (including any court or tribunal) and/or delays or outages caused by an internet service provider or independent (which means not a Party’s subcontractor) hosting facility.
2.14.    “Group” means any company within ITRS’s group, either a subsidiary or a company which Controls ITRS and any subsidiaries of that controlling entity. 
2.15.    “Initial Period” means the initial period of the subscription to SaaS as set out in the Notification Form.
2.16.    “Intellectual Property Rights” means: (i) patents, inventions, designs, copyright and related rights (including rights in software), database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) know-how and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world.
2.17.    “ITRS” means ITRS Scotland Limited, a company incorporated and registered in Scotland (registered no. SC224403) with its registered office at Gordon Lamb House, 3 Jackson's Entry, Edinburgh, EH8 8PJ.
2.18.    “ITRS Services Policies” means the policies describing SaaS data security, business continuity, availability and any other details for the SaaS as made available by ITRS at Customer’s request.
2.19.    “Notification Form” means the form or licence schedule issued by ITRS at or about the time of making SaaS available to Customer. The Notification Form shall specify details of the SaaS, the Authorised Use Limitation, the number of User Accounts and the Initial Period.
2.20.    “Parties” or “Party” means individually, and or collectively, ITRS and or Customer.
2.21.    “Production” means the “live” environment of SaaS that Customer uses as its primary business environment.
2.22.    “Renewal” means any renewal of the Initial Period pursuant to Clause 6.3.
2.23.    “SaaS” means the online version of the ITRS software and or type of service stated in the Notification Form and made available to Authorised Users.
2.24.    “SaaS Support” means support of the SaaS offering so it operates materially in accordance with the Documentation. For the avoidance of doubt, this shall not include any support of Customer Applications.
2.25.    “Scheduled Downtime” means planned downtime of SaaS availability for periodic and required maintenance events, including but not limited to, upgrades and updates to the SaaS and data centre infrastructure where ITRS provides notice to Customer at least 72 hours in advance.
2.26.    “Security Breach” means access to Customer Data (where such Customer Data is in the possession and/or control of ITRS) by an unauthorised person or entity.
2.27.    “Subscription Term” means the Initial Period plus any Renewal(s).
2.28.    “User Accounts” means the number of Customer users permitted in the Licence Schedule.

3.    SAAS OFFERING

3.1.    ITRS provides to Customer, directly or through its subcontractors (which may include its Group companies), a non-transferable and non-exclusive right for Customer and its Authorised Users to access and use SaaS during the Subscription Term in accordance with the Agreement. ITRS may utilise subcontractors in the provision of such SaaS provided that ITRS will be responsible to Customer for the acts and omissions of its subcontractors in connection with this Agreement.  ITRS agrees that, where applicable, any use of subcontractors in the operation of any data centre will be subject to the same security controls and audits as if performed by ITRS employees.
3.2.    Customer acknowledges and agrees that in order for Customer to access and/or use SaaS, Customer is required to maintain minimum requirements (such as operating system versions, browsers etc.) as stated in the Documentation.
3.3.    If ITRS has agreed to provide software to Customer to enable or to optimise SaaS during the Subscription Term (or for any other reason connected with this Agreement) (the “Supporting Software”), ITRS shall grant to Customer, during the Subscription Term, a non-transferable and non-exclusive right to use the Supporting Software solely in connection with SaaS and for the sole purpose of allowing Customer’s applications or web services to utilise SaaS. 
3.4.    Customer agrees, that neither it nor its Authorised Users shall: (i) access or use any part of the Supporting Software and/or SaaS not expressly authorised in the Notification Form or the Documentation without prior written authorisation from ITRS; (ii) cause or permit de-compilation, reverse engineering, or otherwise translate all or any part of the Supporting Software and/or SaaS; (iii) modify, unbundle, or create derivative works of the Supporting Software, SaaS and/or Documentation; (iv) rent, sell, lease, assign, transfer or sublicense the Supporting Software and/or SaaS or use it to provide hosting, service bureau, on demand or outsourcing services for the benefit of a third party; (v) remove any proprietary notices, labels, or marks on or in any copy or version of the Supporting Software, SaaS and/or Documentation; (vi) use the Software, SaaS and/or Documentation beyond the rights granted. At the end of the Subscription Term, Customer shall, at ITRS’s option, either (i) return all installed agents, Supporting Software, SaaS and/or Documentation (and related tools and documentation) to ITRS or (ii) certify in writing that all such items have been destroyed or permanently deleted from all Customer devices.

4.    ORDERING AND DELIVERY

4.1.    ITRS will make SaaS available to Customer only upon written acceptance by ITRS of an applicable order (including an agreed Billing Metric) from the Customer, through an Authorised ITRS Partner if applicable.

5.    CONFIDENTIAL INFORMATION

5.1.    Each Party agrees that when receiving Confidential Information from a disclosing Party (the “Disclosing Party”), the receiving Party (“Receiving Party”) shall hold it in confidence and shall not disclose or use such information except as permitted under the Agreement. The Receiving Party shall treat the Disclosing Party’s Confidential Information confidentially and in the same manner as it treats its own proprietary and or confidential information, which shall not be less than a reasonable standard of care.  The Receiving Party shall only be entitled to use Confidential Information in connection with the Agreement. Confidential Information may only be disclosed to the Receiving Party’s employees, agents, financial advisors, contractors and attorneys if such disclosure is reasonably required in connection with the Agreement (or in the circumstances set out in clause 5.2), and the Receiving Party shall ensure that such persons maintain such Confidential Information pursuant to the terms of the Agreement.
5.2.    The Receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the Receiving Party shall, where reasonably possible, give the Disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the Disclosing Party to obtain a protective order.
5.3.    For the purposes of the Agreement, Confidential Information shall exclude: (i) information which the Receiving Party has been authorised in writing by the Disclosing Party to disclose without restriction; (ii) information which was rightfully in the Receiving Party’s possession or rightfully known to it prior to receipt of such information from the Disclosing Party; (iii) information which was rightfully disclosed to the Receiving Party by a third party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the Receiving Party; and (v) information which is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
5.4.    Nothing in the Agreement will:
(i)    preclude ITRS or any entity within the Group from using the ideas, concepts and know-how which are developed in the course of providing any SaaS to Customer; or 
(ii)    be deemed to limit ITRS’s rights to provide similar SaaS to other customers.
5.5.    Customer agrees that ITRS and its Group may use any feedback provided by Customer related to any SaaS for any ITRS or Group business purpose, without requiring consent including reproduction and preparation of derivative works based upon such feedback, as well as distribution of such derivative works.
5.6.    The Receiving Party agrees that it shall at the end of the Subscription Term (or earlier where appropriate), upon request of the Disclosing Party, return to the Disclosing Party all Confidential Information in its possession or certify the deletion or destruction thereof.
5.7.    In the event of a breach of this clause 5, it is agreed that the Disclosing Party may not have an adequate remedy in damages. The Parties therefore agree that the Disclosing Party may be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction.
5.8.    The confidentiality undertakings set out in this clause 5 shall survive for five (5) years from the date of expiry or earlier termination of this Agreement.

6.    FEES & RENEWAL

6.1.    Unless otherwise stated, ITRS will monitor Customer’s SaaS usage and the number of User Accounts. In the event Customer exceeds the Authorised Use Limitation, the overage will be treated as an order for excess use and Customer will be billed by ITRS, or through its Authorised ITRS Partner if applicable, for the overage.  Where the overage is due to a permanent change in Customer configuration and/or requirements, then ITRS shall be entitled to increase its fees accordingly and the overage will be included in the Authorised Use Limitation for the remainder of the Subscription Term. Customer agrees that the purchase of SaaS is not contingent on ITRS providing any future features or functionalities.
6.2.    Expiration or termination of any particular SaaS shall not impact the validity of any other SaaS Customer may be subscribing to.
6.3.    On expiry of the Initial Term the subscription shall automatically renew on the same SaaS Terms for a period of one year unless either Party provides not less than thirty (30) days’ prior written notice that they do not wish to renew the subscription.
6.4.    ITRS may update, improve, modify or add new functionality to SaaS during the Subscription Term. In the event that any update will materially change either the administrator or user experience, ITRS will provide Customer reasonable prior notice (not less than thirty (30) days) and will provide a preview where Customer can observe such changes where applicable, provided however that ITRS may make a change with shorter or no notice if the change is required by law or to fix a security vulnerability.

7.    TITLE

7.1.    ITRS and / or its licensors retains all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to all SaaS, ITRS software, ITRS Confidential Information and any derivatives thereof. No title, copyright, patent, trademark, trade secret or other right of intellectual property (including any licence) not expressly granted under the Agreement is granted by the Parties.
7.2.    Customer will be the owner of all Intellectual Property Rights (including title) to any Customer Applications created, conceived, developed, made, reduced to practice, or invented by Customer, provided, however:
7.2.1.    that such ownership is and shall continue to be subject to ITRS's underlying ownership interest in and to all of the SaaS from which any Customer Application is derived; and
7.2.2.    Customer shall grant ITRS an exclusive world-wide, royalty-free, fully-paid, irrevocable, freely sub-licensable and transferable licence to use, develop, design, and commercially exploit any application or software that is similar to any Customer Application or that makes use of any process, function or method that is similar to any process, method or function in any Customer Application.
7.3.    In respect of any Customer Application: 
7.3.1.    the Customer shall not, unless ITRS gives its prior approval to Customer in writing, in any circumstance whatsoever, to offer, distribute, sublicence, or otherwise commercially exploit any of the Customer Applications as a product or a service, regardless of whether such product or service generates revenue. Such products or services shall include, without limitation, the provision of third party training; and
7.4.    Customer shall indemnify member(s) of the ITRS Group from and against all losses, costs, expenses, liabilities, damages, claims, demands, proceedings or legal costs and judgments that member(s) of the ITRS Group incurs or suffers as a result of a breach of or in any enforcement action in respect of any of the terms set out in this clause 7.3  in connection with the use of Customer Applications.
7.5.    Disclaimer for Customer Applications and Customer Data
7.5.1.    ITRS does not represent, warrant or make any commitment whatsoever:
7.5.1.1.    as to the Customer Data's accuracy, completeness, quality, merchantability and fitness for a particular purpose, even if ITRS has been informed of such purpose;
7.5.1.2.    that any Customer Data (or any information contained within any Customer Data) will not infringe the Intellectual Property Rights of any third party or any third-party rights of any kind; and
7.5.1.3.    that Customer Data will comply (or the use of any Customer Data) will comply with law applicable to Customer.
7.5.2.    ITRS shall not be responsible or liable in any way for Customer’s, or any third-party's use, implementation or incorporation of, or reliance on the Customer Data:
7.5.2.1.    in connection with the SaaS; and/or 
7.5.2.2.    in connection with a Customer Application; and/or
7.5.2.3.    in connection with the development or creation of a Customer Application; and/or
7.5.2.4.    in connection with its storage and / or distribution; and/or
7.5.2.5.    for any other purpose whatsoever; or
7.5.2.6.    for any of the consequences that may arise as a result of the above.

8.    SECURITY

8.1.    ITRS will maintain and administer a security policy with physical and technical safeguards designed to protect the security, integrity and confidentiality of the Customer Data. ITRS shall adhere to and subject such policies and practices to audit as described in the ITRS Services Policies. Upon written request, Customer may review the audit reports, redacted to comply with security requirements or for commercial sensitivity, subject to Customer designating a security officer or similar individual who has executed a security non-disclosure agreement with ITRS prior to such review.
8.2.    ITRS will not be responsible for any unauthorised access to, or alteration, theft or destruction of Customer Data, unless caused as a result of ITRS’s negligence or intentional misconduct, in which case ITRS’s only obligation and Customer’s exclusive remedy is for ITRS to use commercially reasonable efforts to restore the Customer Data from the most recent backup. ITRS is not responsible for unauthorised access to, or alteration, theft or destruction of Customer Data arising from Customer’s own or its Authorised Users’ actions or omissions in contravention of the Documentation.
8.3.    In the event that ITRS has determined that a Security Breach will or is likely to cause harm to the Customer or an Authorised User, ITRS will within five (5) working days provide Customer with notice of the Security Breach. After initial notification, ITRS will keep Customer updated at periodic intervals on the steps taken by ITRS to investigate the Security Breach including providing a reasonably detailed incident report, including measures to be taken by the Customer to minimise potential damages. Such report will be provided promptly but no later than thirty (30) days following completion of the report. The Parties understand and agree that if ITRS is prevented by law or regulation from providing such notice(s) and or reports within the time frames, such delay shall be excused.

9.    SAAS SUPPORT

9.1.    Upon the start of the Subscription Term, ITRS will send an email to Customer’s technical contact, identified on the Notification Form, providing any information required by the Customer to connect and access SaaS.
9.2.    The Customer shall be provided with SaaS Support during the Subscription Term. To access SaaS Support, Customer may utilise the ITRS website, or other site or notification mechanism as ITRS may designate from time to time.
9.3.    For any SaaS Support requests, Customer should be prepared to provide to support personnel all pertinent information, in English, including but not limited to, Customer number or site identification number, incident severity, SaaS offering, incident description, and a technical contact familiar with Customer’s environment and the problem to be solved. Customer must use reasonable efforts to communicate with ITRS in order to verify the existence of the problem and provide information about the conditions under which the problem could be re-created.
9.4.    Upon receiving Customer’s technical contact information, SaaS Support will be provided in a timely and professional manner by qualified support engineers. SaaS Support shall consist of:
9.4.1.    access to ITRS and/or Group help desk and the ability to open and manage support incidents via ITRS and/or Group support online or by telephone; and
9.4.2.    support as detailed in the ITRS Services Policies which may be subject to change from time to time.

10.    CUSTOMER RESPONSIBILITIES

10.1.    Customer is responsible for all activities that occur in, or are related to, user accounts including the data, information stored or transmitted when accessing SaaS. All applications residing within Customer environment or installed on third party service providers on behalf of Customer that integrate to SaaS are the responsibility of Customer, as are all Customer Applications. Customer is also responsible for any components that are downloaded onto their environment such as web browser based software plug-ins that extend or integrate with SaaS.
10.2.    Customer may integrate or utilise third party links to other software, hardware or other services which are associated with, or otherwise available through SaaS, provided that Customer agrees that it and/or its Affiliates, its Authorised Users and anyone acting on their behalf shall use such third party links at their sole risk and discretion. ITRS shall have no responsibility or liability with respect to such third party products or services or for any act or omission of any such third party provider.
10.3.    Customer shall not: (i) make SaaS available to any third party not authorised or otherwise contemplated by the Agreement; (ii) send or store code that may harm or result in damage to SaaS (including but not limited to malicious code and malware); (iii) wilfully interfere with or disrupt the integrity of SaaS or any related data; (iv) attempt to gain unauthorised access to the SaaS or its related system or networks; (v) use SaaS to provide services to third Parties except as expressly permitted by the Agreement; or (vi) use SaaS in order to damage or disrupt or otherwise harm the business or operations of a third party.
10.4.    Customer acknowledges that ITRS may wish to amend and/or correct and/or upgrade components of the SaaS from time to time and will co-operate with ITRS to facilitate the timely implementation of such amendments, corrections and upgrades (at no additional cost to Customer and subject to any reasonable Customer security requirements).

11.    DATA PROTECTION

11.1.    In this clause, the terms "controller", "processor", "data subject", "personal data", "processing" and "process" and "special categories of personal data" shall have the meanings given in Applicable Data Protection Law.
11.2.    For the avoidance of doubt, ITRS is not contracted to process any personal data on behalf of the Customer except as stated in this clause. The extent of any processing of personal data carried out by ITRS for the Customer is limited to any processing of personal data that ITRS may conduct in connection with or incidental to its provision of SaaS to the Customer (the " Customer Personal Data"), in which case the Customer (the controller) appoints and instructs ITRS as its processor to process the Customer Personal Data for that purpose.
11.3.    The Customer should use all reasonable endeavours to anonymise any Customer Personal Data that is transferred to ITRS in respect of the provision of SaaS (in which case this clause will not apply in respect of that anonymised data). The Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to ITRS for processing.
11.4.    Each party shall comply with its obligations under Applicable Data Protection Law. 
11.5.    ITRS shall not transfer the Customer Personal Data outside of the European Economic Area ("EEA") unless such transfer is in accordance with Applicable Data Protection Law and ITRS’s own intra-group data transfer agreement.
11.6.    ITRS shall ensure that any person it authorises to process the Customer Personal Data shall protect the Customer Personal Data in accordance with ITRS's confidentiality obligations under this Agreement.
11.7.    ITRS shall implement technical and organisational measures to protect the Customer Personal Data (i) from accidental or unlawful destruction, or (ii) loss, alteration, unauthorised disclosure of, or access to the Customer Personal Data in each case due to a breach of ITRS security (a "Security Incident").  
11.8.    The Customer consents to ITRS engaging third party subprocessors to process the Customer Personal Data provided that: (i) ITRS maintains an up-to-date list of its subprocessors as advised, which it shall update with details of any change in subprocessors at least 10 days prior to any such change; (ii) ITRS imposes data protection terms on any subprocessor it appoints that require it to protect the Customer Personal Data to at least the standard required by Applicable Data Protection Law; and (iii) ITRS remains liable for any breach of this clause that is caused by an act, error or omission of its subprocessor.  The Customer may object to ITRS's appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection.  In such event, ITRS will either not appoint or replace the subprocessor or, if this is not possible, the Customer may suspend or terminate elements of the SaaS (without prejudice to any fees incurred by the Customer for the relevant SaaS prior to suspension or termination). For the avoidance of doubt, any termination by the Customer of the SaaS shall not terminate or affect the licence schedule arising under the Agreement, any other services in this Agreement, or any fees payable in respect of the SaaS or any other services under this Agreement.
11.9.    ITRS shall provide reasonable and timely assistance to the Customer (at the Customer 's expense) to enable the Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party, in each case in connection with the processing of the Customer Personal Data. In the event that any such request, correspondence, enquiry or complaint is made directly to ITRS, ITRS shall promptly inform the Customer providing full details of the same.
11.10.    ITRS shall provide reasonable cooperation to the Customer (at the Customer 's expense) in connection with any data protection impact assessment that the Customer may be required to conduct under Applicable Data Protection Law in relation to the processing of Customer Personal Data. 
11.11.    If ITRS becomes aware of a confirmed Security Incident, ITRS shall inform the Customer without undue delay and shall provide reasonable information and cooperation to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law.  ITRS shall further take such any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Customer informed of all material developments in connection with the Security Incident.
11.12.    Upon termination or expiry of the Agreement, ITRS shall (at the Customer 's election) destroy or return to the Customer all Customer Personal Data in its possession or control.  This requirement shall not apply to the extent that ITRS is required by Applicable Data Protection Law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, in which event ITRS shall securely isolate and protect it from any further processing except to the extent required by such law until deletion is possible.

12.    WARRANTY

12.1.    Subject to clause 13, ITRS warrants that during the Subscription Term, the SaaS shall, subject to compliance by Customer with all terms in this Agreement relating to use of SaaS, perform materially in accordance with the applicable Documentation.
12.2.    Except as expressly set forth above, to the extent permitted by law, no other warranties, whether express or implied, including, without limitation, third party warranties, implied warranties or conditions of merchantability, suitability or satisfactory quality, or the warranty of fitness for a particular purpose are made by ITRS in connection with the provision of SaaS.  In addition, ITRS makes no warranties hereunder with respect to any hardware equipment or third party software which ITRS may use to provide SaaS.
12.3.    Customer warrants that it has the right to provide Customer Data (and any other data or information as may be required) to ITRS, solely for the purposes of accessing and using SaaS.

13.    REMEDIES

13.1.    Customer shall notify ITRS of any suspected breach of the warranty given in clause 12.1 within thirty (30) days of its occurrence. Failure to do so or to provide such reasonable detail as to allow ITRS to investigate such alleged breach may, at ITRS’s sole discretion, invalidate the warranty.
13.2.    If it is reasonably established that ITRS has breached the warranty set out in clause 12, ITRS may, at its option, (i) use reasonable efforts to cure the defect in the SaaS; (ii) replace the SaaS with other software that materially conforms to the specifications in the Documentation on the same terms as this Agreement; or (iii) in the event ITRS cannot, after commercially practicable attempts to do so, achieve the remedies in (i) or (ii), ITRS may terminate the subscription to the SaaS and arrange for a pro-rated refund to the Customer, through its Authorised ITRS Partner if applicable, of the fees received by ITRS during the Subscription Term for the SaaS which gave raise to the warranty claim. The pro-rata refund shall be calculated against the number of months left remaining on the Subscription Term after the breach occurred. The remedies set out in this clause 13.2 are Customer’s sole and exclusive remedies for breach of the warranty set out in clause 12.1.

14.    SERVICE LEVEL AVAILABILITY (“SLA”)

14.1.    If Customer cannot access SaaS during the Subscription Term, Customer should contact ITRS to receive SaaS Support. ITRS will not be responsible for any unavailability of which it has not been notified.
14.2.    The ITRS Services Policies describe the service levels for availability operated by ITRS.
14.3.    The following events shall be excluded from the calculation of SLA: (i) Force Majeure Event; (ii) outages due to Scheduled Downtime; (iii) outages based on Customer networks or domain name server issues; (iv) Customer’s configuration, scripting, coding drafted by Customer without ITRS’s authorisation or knowledge; (v) internet service provider outages; (vi) outages requested by Customer; (vii) Customer changes to its environment which hinder SaaS production; (viii) interfacing of SaaS to non-approved and/or non-specified third party products; and (ix) inability for Customer to log in to or use SaaS service because of dependence on non-ITRS provided services or components (e.g. Lightweight Directory Access Protocol (LDAP) in Customer environment).

15.    INDEMNIFICATION

15.1.    Subject to clause 15.7 and provided that Customer complies with the provisions of clauses 15.4, 15.5 and 15.6, ITRS shall indemnify Customer against all liabilities, costs, expenses (including reasonable legal fees), losses and damages arising from or incurred by reason of any third party claim that the possession or use of the SaaS and/or Documentation in accordance with the terms of this Agreement infringes a third party’s Intellectual Property Rights (“Claim”).
15.2.    If Customer’s use of the SaaS is adjudged to have infringed or if, in ITRS’s reasonable judgment, is likely to infringe a third party’s Intellectual Property Rights, then ITRS may, at its option: 
15.2.1.    procure the right to continue to provide the SaaS; 
15.2.2.    repair, modify or replace the SaaS so that it is no longer infringing without detrimentally affecting the SaaS functionality or performance; or
15.2.3.    terminate this Agreement immediately by notice in writing to Customer and provide or authorise a refund of any of the fees paid for the remaining Subscription Term as at the date of termination.
15.3.    The indemnity given by ITRS under Clause 8.1 shall not cover a Claim arising from: 
15.3.1.    the combination of the SaaS with material not provided by ITRS or that was not approved by ITRS;
15.3.2.    the modification of SaaS or the Documentation, other than by ITRS or without ITRS’s prior written approval; 
15.3.3.    the use of the SaaS otherwise than in accordance with the Documentation and/or ITRS’s published guidelines; or
15.3.4.    if the alleged infringement would be avoided or otherwise eliminated by the use of a ITRS published update or patch for the software used in the SaaS.
15.4.    Customer shall promptly notify ITRS in writing and specify full details of any Claim brought against it. ITRS shall have exclusive conduct of any proceedings and negotiations arising from the Claim, provided that in so doing it shall take reasonable account of the commercial requirements and interests of Customer.  
15.5.    Customer shall cooperate with all reasonable requests of ITRS, at ITRS’s expense, in the conduct of the proceedings and negotiations referred to in clause 15.4 and for the purposes of assessing the Claim.
15.6.    Customer shall not make any admission of liability, agreement or compromise in respect of a Claim without ITRS’s prior written consent.
15.7.    Customer shall indemnify ITRS against any claim that any data, materials, items or information supplied to ITRS under the Agreement infringes any patent, copyright or trademark within the jurisdictions where ITRS is provided with such information.
15.8.    For the avoidance of doubt the indemnity set out in this clause 15 shall not apply to any of the Customer’s adaptions of the SaaS and/or any Customer Data.

16.    LIMITATION OF LIABILITY

16.1.    Customer shall assume sole responsibility for results obtained from the use of the SaaS and Documentation by it, and for conclusions drawn from such use. The SaaS involves predictions based on assumptions and while the SaaS may be used as a tool to guide conclusions, forecasted outcomes are not guaranteed.
16.2.    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 SaaS and Documentation are provided to you on an “as is” basis.
16.3.    Neither Party shall 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, loss of anticipated savings, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
16.4.    Nothing in this Agreement excludes the liability of ITRS (a) for death or personal injury caused by its negligence; or (b) for fraud or fraudulent misrepresentation; or (c) to the extent that such liability cannot be limited or excluded by law.  Subject to the foregoing, the aggregate liability of ITRS under this Agreement shall in no circumstances exceed the aggregate fees paid by Customer to ITRS in the previous twelve (12) months (or the relevant ITRS Partner) under this Agreement.
16.5.    Customer acknowledges that the SaaS may be hosted by third party service provider(s) (“Third Party Provider(s)”). To the extent that any claim arises out of an act, error, omission or negligence by any such Third Party Provider(s), ITRS’s aggregate liability to the Customer in relation to such claim shall not exceed the total liability of such Third Party Provider(s) (if any) to ITRS in respect of such act, error, omission or negligence.
16.6.    Customer shall defend, indemnify and hold harmless ITRS against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with its use of the SaaS and/or Documentation, provided that: Customer is given prompt notice of any such claim; ITRS co-operates reasonably with Customer in the defence and settlement of such claim, at Customer’s expense; and Customer is given sole authority to defend or settle the claim.
16.7.    A person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.

17.    TERM & TERMINATION

17.1.    The Agreement shall continue in effect for the duration of the Subscription Term unless otherwise terminated in accordance with this clause.
17.2.    The Agreement may be terminated by either Party (a) upon a material breach by the other Party, provided that, in each instance of a claimed breach: (i) the non-breaching Party notifies the breaching Party in writing of such breach; and (ii) the breaching Party fails to cure such breach within thirty (30) days (or such other period as mutually agreed by the Parties) from receipt of such notice; or (b) upon insolvency of (or equivalent event in relation to) the other Party, if permitted by law.
17.3.    Termination does not release either Party from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under law or in equity with respect to any breach of the Agreement.

18.    DISPUTE RESOLUTION

18.1.    Any dispute, controversy or claim arising out of the Agreement or the interpretation thereof (a “Dispute”) shall be resolved as provided in this clause. Prior to the initiation of formal dispute resolution procedures, the Parties shall first meet as often, and for such duration and as promptly as the Parties reasonably deem necessary to discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute. If Customer and ITRS are unable to resolve the Dispute within thirty (30) days after written notification from one Party to the other that they consider there is a Dispute, then each Party will appoint one (1) senior executive who is not involved on a day-to-day basis with the subject matter of the Agreement and will negotiate the matter in good faith in an effort to resolve the Dispute without the necessity of any formal proceedings.
18.2.    Formal proceedings for the resolution of a Dispute may not be commenced until the earlier of: (i) the good faith determination by the appointed senior executives that amicable resolution through continued negotiation of the matter does not appear likely; or (ii) thirty (30) days following the date that the Dispute was first referred to the appointed senior executives. The provisions of paragraphs (i) and (ii) will not be construed to prevent a Party from instituting formal proceedings to the extent necessary to avoid the expiration of any applicable limitations period or to pursue equitable rights or injunctive remedies deemed reasonable necessary to protect its interests.

19.    GENERAL TERMS

19.1.    Amendments. 
The terms of the Agreement may only be amended by mutual written agreement of the Parties.
19.2.    Force Majeure. 
Except obligations pertaining to non-disclosure, notwithstanding any contrary provision in the Agreement, neither Party will be liable for any action taken, or any failure to take any action required to be taken, in the event and to the extent that the taking of such action or such failure arises out of a Force Majeure Event.
19.3.    Assignment. 
If ITRS assigns or sells or otherwise transfers its rights to a business or product line or substantially all of its assets and provided the transferee agrees to perform the obligations under the Agreement, then ITRS may transfer its rights and obligations under the Agreement upon written notice to Customer. Except as permitted herein, neither Party may transfer or assign, whether by operation of law or otherwise, the Agreement without prior written consent of the other Party, and consent shall not be unreasonably withheld. Attempts to transfer or assign in contravention of this clause shall be deemed null and void. The Agreement shall be binding on the Parties hereto and their respective successors and assigns.
19.4.    Import Export. 
ITRS will comply with all applicable import, re-import, export, and reexport control laws and regulations. Customer is solely responsible for compliance related to the manner in which it chooses to use the SaaS (including the jurisdiction from which it uses the SaaS), including transfer and processing of its data in accordance with Clause 11..
19.5.    Announcements. 
Neither Party may issue press releases relating to the Agreement without approving the content with the other Party. Either Party may include the name and logo of the other Party in lists of customers or vendors in accordance with the other Party’s standard guidelines.
19.6.    Notice. 
All notices hereunder shall be delivered to the other Party identified in the Notification Form either personally, via certified mail, email or overnight courier. If delivered personally, notice shall be deemed effective when delivered; if delivered via email, notice shall be deemed effective upon electronic confirmation; and if delivered via certified mail or overnight courier, notice shall be deemed effective upon confirmation of delivery. If delivered by email, notice should be sent to legal@itrsgroup.com.
19.7.    Waiver. 
A Party will not be treated as having: (a) waived a right or remedy arising under this Agreement or otherwise in law; and/or (b) elected to abandon a right or remedy arising under this Agreement or otherwise in law; and/or (c) where applicable, thereby affirmed this Agreement; except if and to the extent that it has expressly documented such waiver or election (and any resultant affirmation) in writing signed and delivered or sent in accordance with clause 19.6 (Notices) to the Party in favour of which such waiver or election is granted or made.
19.8.    Headings. 
The clause headings used herein are for information purposes only and shall not affect the interpretation of any provision of the Agreement.
19.9.    Validity. 
In the event any term or provision of the Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of the Agreement.
19.10.    Third Party Rights. 
A person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999. 
19.11.    Choice of Law. 
This Agreement (and any non-contractual dispute) is governed by and construed in accordance with the laws of England and Wales. The Parties agree that any action arising under or relating to the Agreement shall lie within the exclusive jurisdiction of the English courts.
19.12.    Survival. 
Clauses pertaining to Definitions, Confidential Information, Title, Customer Data, Customer Responsibilities, Indemnification, Limitation of Liability, Termination, and General Terms shall survive termination of the Agreement.
19.13.    Entire Agreement. 
The Agreement and all documents incorporated by reference therein shall comprise the entire agreement as pertaining to the subject matter thereof and all other prior representations, proposals, and other such information exchanged by the Parties concerning the subject matter are superseded in their entirety by the Agreement.