Phocas end user license agreement

This Agreement governs Our relationship with You, including Your subscription to, and use of, Our Services and is a binding legal document between Us and You.

You acknowledge that You enter into this Agreement with Phocas Cloud Pty Ltd only in its capacity as agent for the Phocas Entities.

You acknowledge that We may amend or modify this Agreement from time to time, subject to the terms in Clause 25(d) below.

You may not access the Software or Services if You are Our direct competitor (as determined in Our absolute discretion), except with Our prior written consent.

1. Term

a. This Agreement commences on the date You first accept this Agreement, either by written correspondence indicating Your acceptance, by electronic indication such as ticking an online checkbox or clicking on the "I Agree" (or similar button), or by executing an Order Form referencing this Agreement, or by applying for a Trial, and continues until all subscriptions hereunder have expired or have been terminated.

b. By accepting this Agreement, You agree to be bound by the terms of this Agreement.

c. The term of each subscription for Services shall be as specified in the applicable Order Form ("Initial Subscription Term").

d. Except as otherwise specified in an Order Form:

i. where Your Initial Subscription Term is 6 months, You will need to pay for that Initial Subscription Term immediately, and thereafter the Initial Subscription Term will automatically renew for additional periods as a monthly subscription, unless You provide Us with written notice of non-renewal of at least the period set out in the Order Form. The Initial Subscription Term is non-refundable and thereafter if You cancel, Your subscription for Services will terminate at the end of then-current billing cycle, but You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination; or

ii. where Your Initial Subscription Term is monthly, You will need to pay for that Initial Subscription Term immediately, and thereafter the Initial Subscription Term will automatically renew for additional periods of one month, unless You provide Us with written notice of non-renewal of at least the period set out in the Order Form. If You cancel, Your subscription for Services will terminate at the end of then-current billing cycle, but You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination; or

iii. where Your Initial Subscription Term is 12 months, You will need to pay for that Initial Subscription Term immediately, and thereafter the Initial Subscription Term will automatically renew for additional periods of 12 months, unless You provide Us with written notice of non-renewal of at least the period set out in the Order Form. The Initial Subscription Term and each following 12 month subscription period are non-refundable.

e. There will be no automatic renewal for a Trial or Trial Period.

f. Except as set out in clause 1(d) above, if You cancel, Your subscription for Services will terminate at the end of then-current billing cycle, but You will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

g. Unless stated otherwise in your contract, following the initial term, any reduction in licences or cancellation of the agreement requires three (3) months’ notice.

2. Capacity

If You are entering into this Agreement on behalf of a company or any other legal entity, You are binding, and represent that You have the authority to bind, such entity and its Affiliates to the terms of this Agreement, in which case the terms "You" or "Your" or "Customer" shall refer to both You, as well as to such entity and its Affiliates. If You do not have such authority, or if You do not agree to be bound by the terms of this Agreement, You must not accept this Agreement and You must refrain from using the Services and the Software.

3. Definitions

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. 'Control', for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity or the power to direct the management or affairs of the subject entity.

"Agreement" means this End User Licence Agreement and the Schedule.

"Applicable Jurisdiction" has the meaning in clause 22(b).

"Business Day" means a day on which banks are open for business in the Applicable Jurisdiction;

"Claims" includes all claims, notices, demands, actions, penalties, fines, proceedings, litigation, awards, accounts, investigation, verdicts or judgments, however arising, whether present, immediate, future or contingent, whether based in contract, tort, statute or otherwise;

"Confidential Information" means all information disclosed by a party ("Disclosing ?Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation all codes, inventions, know-how, business, technical and financial information.

"Content" means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.

“Data Protection Laws” has the meaning given to it in the Schedule.

"Documentation" means all documentation produced by Us to assist You in relation to the Services, including Our online user guides, documentation, and help and training materials, as updated from time to time and accessible via https://help.phocassoftware.com/ and/or such other domain(s) as We may notify to You from time to time or by logging in to the applicable Service.

"Employee" means any person employed by Us or engaged by Us to provide services to Us as a contractor.

"Feedback" has the meaning given in clause 15(d).

"Force Majeure" has the meaning given in clause 20(a).

"Initial Subscription Term" has the meaning given in clause 1(c).

"Law" or "Laws" includes all applicable local, state, federal and international laws and regulations of any jurisdiction, including:

1. any statute, regulation, rule, by-law, ordinance, proclamation, treaty, decree, convention, rule of any applicable stock exchange, or requirement or approval (including any government agency);

2. any judgement, court order, injunction or rule or principle of common law or equity; and

3. that law as amended, consolidated, supplemented, re-enacted or replaced.

“Liabilities“ includes all Claims, losses, liabilities, damages, costs (including the cost of any settlement and legal costs and expenses on a full indemnity basis), compensation or expenses or any kind and howsoever arising, including penalties, fines and interests, and including those which are prospective or contingent and those, the amount of which for the time being, is not ascertained or ascertainable.

"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

"Non-Phocas Applications" means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service or the Software.

"Non-Phocas Products" has the meaning given in clause 13(a).

"Order Form" means an ordering document submitted by You specifying the Services requested to be provided hereunder that is accepted by Us and entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto.

"Permitted Number of Users" has the meaning given in clause 9(b).

“Personal Data” has the meaning given to it in the Schedule.

Data Protection Laws"Phocas Entities" means Phocas Ltd, Phocas Pty Ltd, Phocas UK Ltd, and Phocas Inc and any Affiliate or related body corporate of any of them and "Phocas Entity" means any one of them.

"Privacy and Cookies Policy" means Our privacy and cookies policy which is available from Our website https://www.phocassoftware.com/terms/privacy-and-cookies-policy, as amended from time to time.

"Purchased Services" means Services that any of You or Your Affiliate purchase under an Order Form and does not include any Services provided to You in any Trial Period.

"Relevant Entity" has the meaning given in clause 14(a).

"Services" means the products (including any Software) and services that We may provide to You from time to time pursuant to this Agreement, including Purchased Services, products and services that are requested by You through an Order Form, products and services that are delivered to You under a free trial provided by Us, products and services that are provided by Us to You under free or purchased proof of concept usage and all other products and services that are made available online by Us, including associated offline components, as described in the Documentation, but excludes the Special Services.

"Software" means any of Our software that is directly related to the Services.

"Special Services" means certain services provided by Us that are not generally available to customers but that may be offered to You in accordance with clause 7 (Special Services) and which do not form part of the Services.

"Tax" or "Taxes"  includes any tax, levy, duty, impost, assessment, deduction, charge, rate, stamp duty, compulsory loan or withholding, or similar governmental assessments of any nature levied, imposed, assessed or collected by or under any legislation or government agency in any jurisdiction whatsoever, including any income, company, undistributed profits, fringe benefits, payroll, sales, goods, services, value added, capital gains, withholding, prescribed payments, land, rating, stamp, transaction, social service and workers?  compensation tax, stamp duty, customs duty, excise duty, franking deficits tax, debits tax, financial institutions duty, charge, contribution, levy and obligation, together with any associated interest, penalty, fine, charge and fee or other amount .

"Trial" has the meaning given in clause 5(a).

"Trial Period" has the meaning given in clause 5(b).

"User" means an individual who is authorised by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors, agents and third parties with whom You transact business.

"UTC" means coordinated universal time.

"We," "Us" or "Our" means Phocas Cloud Pty Ltd acting in its capacity as agent for any Phocas Entity or Phocas Entities.

"You", "Your" or "Customer" has the meaning given in clause 2 and also includes the person submitting the Order Form to Us and any User.

"Your Data" means electronic data and information submitted by or for You to the Software and/or Services or collected and processed by or for You using the Software and/or Services.

4. Privacy and Personal Data

Our Privacy and Cookies Policy, forms part of the terms of this Agreement. Prior to entering into this Agreement, You must read Our Privacy and Cookies Policy. By signing this Agreement, You confirm that You have read, understood and agree to the terms of Our Privacy and Cookies Policy. The information We collect from You in the process of entering into this Agreement shall be processed in accordance with Our Privacy and Cookies Policy. In addition to the terms set out in Our Privacy and Cookies Policy, You acknowledge, confirm and agree as follows:

1. To the extent that We Process Personal Data as part of Your Data, which is disclosed or otherwise provided to Us by You, in connection with Our provision of the Services and/or the Special Services, the provisions of the Schedule shall apply.

2. You hereby indemnify Us and continue to indemnify and hold Us harmless from and against all Claims and Liability which We have or may suffer or incur arising from or in connection with any one or more of the following:

a. any breach by You of any Data Protection Laws or any breach by you of the terms in the Schedule;

b. any breach of any Data Protection Laws, whether by Us or anyone else, arising from or in connection with, whether directly or indirectly, (1) any processing of personal data in the provision of the Services and/or the Special Services in accordance with your instructions, or (2) any act or omission by You.

5. Trial/proof of concept

a. You might come to use Our Services in one of two ways:

i. by applying for a trial or proof of concept arrangement with Us ("Trial");

ii. by subscribing for Purchased Services.

b. If You apply for a Trial and Your application is approved, We will provide Services to You on a trial basis for an agreed period ("Trial Period").

c. A Trial may be free of charge or for an agreed fee, depending on Our agreed arrangements with You.

d. Any Trial Period will end on the earlier of:

i. the end of the Trial Period for which You subscribed to use, and We approved Your use of, the applicable Service(s); or

ii. where relevant, the start date of Your subscription to any Purchased Services.

e. We reserve the right to impose such terms and conditions in relation to any Trial as We decide in Our absolute discretion. Where additional terms and conditions apply to a Trial, such additional trial terms and conditions may be communicated to You electronically (including through Our websites), through an Order Form, or in any correspondence between Us and You. If You are using Our Services or Our Software then You are taken to have agreed to be bound by any such additional terms and conditions and those terms and conditions form part of this Agreement, including being legally binding and enforceable between Us and You.

f. Any data entered into the Software or in the course of Us providing the Services to You during any Trial Period, including data which You enter or data which is entered on Your behalf, and any customisations made to the Software or relating to the Services by or for You, during any Trial Period may be permanently lost unless You purchase a subscription for the same Services as those covered by the Trial, before the end of the Trial Period.

g. You cannot transfer data entered or customisations made during any Trial Period to a Service that is determined by Us, in Our absolute discretion, to be a downgrade from the Services covered by the Trial (e.g. from business edition to personal edition). If You subscribe for a Service that is considered by Us to be a downgrade from that covered by the Trial, You must export Your data before the end of the Trial Period or Your data will be permanently lost. You confirm Your understanding and acceptance of this arrangement and acknowledge and agree that We will not be liable in any way for any such loss of data.

h. Notwithstanding clause 17 (representations and disclaimers), You acknowledge and agree that during any Trial Period, the Services are provided "as-is" and without any warranty by Us as to quality or fitness for purpose provided that this clause is not intended to exclude any rights You may have which cannot be excluded by Law.

i. If You intend to subscribe for Purchased Services following any Trial, You must review the Documentation during the Trial Period so that You become familiar with the features and functions of the Services before You decide to subscribe for the Purchased Services.

6. Our responsibilities

1. Provision of Purchased Services: If You subscribe for Purchased Services, from the start date of Your subscription to any Purchased Services We will:

a. make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms;

b. provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and

c. use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for:

i. planned downtime(of which We will give You at least 8 hours electronic notice and We will schedule, to the extent practicable, during the weekend hours between 22:00 UTC Friday and 3:00 UTC Monday; and

ii. any unavailability caused by circumstances beyond Our reasonable control, including any Force Majeure, Non-Phocas Application, Non-Phocas Products, any failure or delay of another service provided to You, Internet service provider failure or delay, or denial of service attack.

d. You acknowledge that We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.

e. Our Employees: We will be responsible for the performance of Our Employees and the compliance by Our Employees with Our obligations under this Agreement, except as otherwise specified herein.

7. Special Services

a. From time to time, We may invite You to try Special Services at no charge. You may accept or decline any such trial of Special Services in Your sole discretion.

b. Special Services will be clearly designated by Us as special, beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.

c. Special Services are for evaluation purposes and not for production use, are not considered"Services" under this Agreement, are not supported, and may be subject to additional obligations or requirements as determined by Us in Our absolute discretion.

d. Unless otherwise stated, the trial period for any Special Services ("Special Trial") will automatically expire upon the earlier of:

i. one year from the start date of the Special Trial; and

ii. the date that a version of the Special Services becomes generally available, including to other subscribers to Our Services.

e. We may discontinue Special Services at any time in Our absolute discretion and Special Services may never be made generally available.

f. To the fullest extent permitted by relevant Laws, We exclude and disclaim any Liability, including for harm and damage, arising out of or in any way associated with the Special Services.

8. Subscriptions

a. Unless otherwise provided in Your applicable Order Form:

i. Services and Content are purchased as subscriptions;

ii. subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added; and

iii. any added subscriptions will terminate on the same date as the underlying subscriptions.

9. Usage Limits

a. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms.

b. Unless otherwise specified:

i. an Order Form will specify a certain number of Users ("Permitted Number of Users"), and the Service or Content may not be accessed by more than the Permitted Number of Users;

ii. the password of any User may not be shared with any other individual; and

iii. the identification assigned to a User may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content so long as the total number of Users at any time does not exceed the Permitted Number of Users.

c. Only the Permitted Number of Users may use the Service or Content (or both).

d. You may only increase the Permitted Number of Users by executing a new Order Form for additional quantities of the applicable Services or Content. In all cases, You must pay the applicable fee for the additional quantities of the applicable Services or Content and increased Permitted Number of Users. You must ensure that all Users comply with this Agreement the Orders Forms and Documentation and that all use of Service and Content by You and Users is in accordance with this Agreement, the Orders Forms and Documentation.

e. At all times on and from the date of this Agreement, You must:

i. comply with the terms of this Agreement, the Orders Forms and Documentation and procure the compliance of each User with the terms of this Agreement, the Orders Forms and Documentation;

ii. ensure that Your Data and the means by which You acquired Your Data is complete, accurate and complies with this Agreement and all applicable Laws and You indemnify Us in respect of any breach of any Laws in respect of Your Data or the means by which You acquired Your Data;

iii. use Your best endeavours to prevent unauthorised access to or use of any one or more of the Services, Special Services, Software and Content, and notify Us promptly of any such unauthorised access or use;

iv. You must ensure that all Users keep their user IDs and passwords for the Services, Special Services, Software and Content strictly confidential and not share such information with any unauthorised person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using Your accounts and passwords, and You agree to immediately notify Us of any unauthorised use of which You become aware;

v. use the Services, Special Services, Software and Content only in accordance with the Documentation and applicable Laws and government regulations;

vi. comply with all terms and conditions that apply in relation to any Non-Phocas Applications to which You are applying or using any one or more of the Services, Special Services, Software or Content; and

vii. comply with, and procure the compliance of each User with, Our Privacy and Cookies Policy.

f. You represent and warrant that:

i. You have obtained all necessary rights, releases and permissions to provide all Your Data to Us and to grant the rights granted to Us in this Agreement; and

ii. Your Data and its transfer to and use by Us as authorised by You under this Agreement do not violate any applicable Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies.

g. Other than Our security obligations under clause 6(b), We assume no responsibility or liability for Your Data, and You shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

10. Usage Restrictions

a. On and from the date of this Agreement, You must not, and must not allow any User or third party to, do any one or more of the following:

i. make any Service, Special Service Software or Content available to, or use any Service, Special Service Software or Content for the benefit of, anyone other than You or Users;

ii. sell, resell, licence, sublicence, distribute, rent, lease reproduce, modify, adapt, create derivative works of, distribute, transfer, or provide access to any Service, Special Service Software or Content, or include any Service, Special Service Software or Content in a service bureau or outsourcing offering;

iii. use a Service or Special Service (or both) to store or transmit infringing, obscene, offensive, defamatory, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party rights, including privacy rights;

iv. use a Service or Special Service (or both) to store or transmit Malicious Code;

v. interfere with, or disrupt the integrity or performance of, any Service or Software or third-party data contained therein;

vi. attempt to gain unauthorised access to any Service, Special Service Software or Content or its related systems or networks;

vii. permit direct or indirect access to or use of any Service, Special Service Software or Content in a way that circumvents a contractual usage limit;

viii. copy a Service, Special Service or any part, feature, function or user interface thereof;

ix. copy Content except as permitted herein or in an Order Form or the Documentation;

x. frame or mirror any part of any Service, Special Service Software or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation;

xi. access any Service, Special Service or Content in order to build a competitive product or service;

xii. use any Service, Special Service Software or Content for the benefit of any third party;

xiii. incorporate any Service, Special Service Software or Content into a product or service You provide to a third party,

xiv. reverse engineer, decipher, decrypt, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Service, Special Service, Software or Content, except as permitted by Law,

xv. remove or obscure any proprietary or other notices contained in any Service, Special Service, Software or Content;

xvi. access the Service, Software or Content for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes except with Our prior written consent; or

xvii. publicly disseminate information regarding the performance of the Service, Special Service, Software or Content.

b. You will be solely responsible for complying with all applicable Laws relating to any use of cookies or other tracking technologies on any website.

11. Audit and Licence Certification

a. At Our request, You agree to provide a signed certification that You are using all Services, Special Services Software and Content pursuant to the terms of this Agreement. You agree to allow Us, or Our authorised agent, to audit Your use of the Services, Special Services Software and Content.

b. We will provide You with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours.

c. We will bear all out-of-pocket costs that We incur for the audit, unless the audit reveals that You have breached this Agreement.

d. You must provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Your own cost. If You exceed Your usage limits provided in Your applicable Order Form, We may invoice You for any past or ongoing excessive use, and You will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Us at Law or equity or under this Agreement. To the extent We are obligated to do so, We may share audit results with Our third party licensors or assign the audit rights specified in this clause to such licensors.

12. Suspension and Removal of Content and Non-Phocas Applications

a. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate, or is violating, any applicable Law or third-party rights, We may so notify You and in such event You must immediately remove such Content from Your systems.

b. If We receive information that a Non-Phocas Application hosted on a Service or Special Service (or both) by You may violate, or is violating, any applicable Law or third-party rights, We may so notify You and in such event You must immediately disable such Non-Phocas Application or modify the Non-Phocas Application to resolve the violation or potential violation.

c. If You do not take the action required pursuant to this clause 12, or fail to take sufficient action to rectify the issue, or fail to take immediate action, as determined by Us, We may immediately disable the applicable Content, Software, Service and/or Non-Phocas Application or suspend Your access to the Services, Special Services Software and/or Content until the violation or potential violation is resolved and We will not be liable to any loss or damage suffered by You as a result of such suspension or disablement action. You will continue to be charged for the Services and Software during any suspension and/or disablement period. We have no liability to You for removing or deleting any Content and/ or Non-Phocas Application from or suspending Your access to any Services, Special Services Software and/or Content as described in this clause 12.

13. Non-Phocas software providers

a. Acquisition of Non-Phocas Products and Services: We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Phocas Applications and implementation and other consulting services ("Non-Phocas Products"). Any acquisition by You of such Non-Phocas Products, and any exchange of data between You and any provider of Non- Phocas Products, is solely between You and the relevant provider of Non-Phocas Products. We do not warrant or support Non-Phocas Applications or other Non-Phocas Products, whether or not they are designated by Us as "certified" or otherwise and We disclaim all Liability for such Non-Phocas Applications and Non-Phocas Products.

b. Non-Phocas Applications and Your Data: If You install or enable a Non-Phocas Application for use with a Service, You grant Us permission to do all things necessary to grant the provider of that Non- Phocas Application access to Your Data as required for the interoperation of that Non- Phocas Application with the Service. Any determination as to whether access to Your Data is required for the interoperation of that Non- Phocas Application with the Service will be made by Us in Our absolute discretion. We are not responsible or liable for any disclosure, modification or deletion of Your Data resulting from Your Data being accessed by a Non- Phocas Application or any provider of a Non- Phocas Application.

c. Integration with Non-Phocas Applications: The Services may contain features designed to interoperate with Non- Phocas Applications. To use such features, You may be required to obtain access to Non- Phocas Applications from the providers of those Non- Phocas Applications, and You may be required to grant Us access to any account(s) that You have opened in relation to the Non- Phocas Applications. If the provider of a Non-Phocas Application ceases to make the Non- Phocas Application available for interoperation with the corresponding Service features on terms reasonable to Us, We may cease providing those Service features. Any decision to cease providing Our Service in respect of Non- Phocas Applications will be made by Us in Our absolute discretion and where such a decision is made by Us, You will not be entitled to any refund, credit, or other compensation.

14. Fees and payment for subscription for Services

a. Fees: You must pay all fees specified in Order Forms to the Phocas Entity identified in the Order Form (Relevant Entity).

b. Except as otherwise specified herein or in writing on an Order Form:

i. fees are based on Services and Content purchased and not actual usage;

ii. payment obligations are binding and non-cancellable and fees paid are non-refundable; and

iii. quantities purchased cannot be decreased during the relevant subscription term as set out in the Order Form.

c. Invoicing and payment: In order that the Relevant Entity can process payment of applicable fees owing by You, You must provide the Relevant Entity with valid and up to date credit card information, or such alternative documentation that is reasonably acceptable to Us.

d. If You provide credit card information to the Relevant Entity, You authorise the Relevant Entity to charge to that credit card all amounts payable for all Services listed in the Order Form for the Initial Subscription Term and any renewal subscription term(s) as set forth in clause 1 (Term).

e. You will be charged all fees in advance, either annually or otherwise in accordance with any different billing frequency stated in the applicable Order Form.

f. If the Order Form specifies that payment will be by a method other than a credit card, the Relevant Entity will invoice You in advance and otherwise in accordance with the relevant Order Form.

g. Unless otherwise stated in the Order Form, all invoices must be paid by You in advance. Subject to clause 14(j)(ii), You must pay every other invoice within 7 days from the date of the invoice.

h. You must provide complete and accurate billing and contact information to the Relevant Entity and promptly notify the Relevant Entity of any changes to such information.

i. If You are providing Personal Data to the Relevant Entity under this clause, You must refer to and comply with Our Privacy and Cookies Policy.

j. Overdue charges: If any invoiced amount is not received by the Relevant Entity by the due date, then without limiting Our rights or remedies:

i. those charges may accrue interest at the rate of 1.5% per month of the outstanding balance, payable per month by You;

ii. We may in Our absolute discretion require that future subscription renewals and Order Forms are fully paid in advance by You or require payment terms shorter than those specified in clause 14(g).

k. Suspension of Services and acceleration: If any amount owing by You under this Agreement or any other agreement for Our Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised the Relevant Entity to charge to Your credit card), We may, without limiting Our other rights and remedies:

i. accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable; and

ii. suspend Our Services to You until all such amounts are paid in full.

The Relevant Entity will give You at least 10 days? prior notice that Your account is overdue, in accordance with clause 23 (Notices), before suspending Services to You.

l. Payment Disputes: We will not exercise Our rights under clause 14(j) (Overdue charges) or clause 14(k) (Suspension of Service and acceleration) above if, and for so long as, We reasonably believe that You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

m. Taxes: Our fees, including any fees set out in any Order Form, do not include any Taxes. You are responsible and liable for paying all Taxes associated with Your purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible and liable under this clause, We will invoice You and You must pay the invoiced amount unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority that is reasonably acceptable to Us.

n. You hereby indemnify Us and each Phocas Entity (Indemnified Parties) and continue to indemnify and hold any and all the Indemnified Parties harmless from and against

i. any Liability or obligation which any one or more Indemnified Parties have or may suffer or incur by reason of You failing to pay any Taxes for which You are responsible and liable under this Agreement; and

ii. all Liability of any one or more Indemnified Parties (if any) for any unpaid Taxes, arising from or in connection with, whether directly or indirectly, the Services, the arrangements contemplated by this Agreement or any actor omission by You.

o. For clarity, We are solely responsible for Taxes assessable against Us based on Our income, property and employees.

p. Future Functionality: You agree that any subscription to, or purchase made by You of, any one or more of the Services, the Software and the Content are not contingent on the delivery by Us, or anyone associated with Us, of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

 

15. Proprietary rights and licences

a. Reservation of Rights: Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, Special Services the Software and the Content, including without limitation all of Our/their related intellectual property rights, their look and feel, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Us. No rights are granted to You hereunder, and You must not seek to claim any rights, other than as expressly set forth herein.

b. Licence by Us to Use Content: Subject to the terms and conditions of this Agreement, We grant to You a restricted and limited non-exclusive, non-sublicenseable and non-transferable licence, pursuant to Our relevant intellectual property rights and licences, to use Content acquired by You pursuant to the terms of the Order Forms, subject to those Order Forms, this Agreement and the Documentation, including only for the specified term, subject to payment in full by You and subject to You complying with each of the terms and conditions contained in this Agreement, the Order Form and the Documentation. We reserve the right at any time to revoke the restricted and limited licence granted to You pursuant to this clause, including for any breach of the terms and conditions contained in any one or more of this Agreement, the Order Form and the Documentation.

c. Licence by You to Host Your Data and Applications: You grant Us and Our Affiliates a worldwide, royalty free irrevocable licence to host, use, copy, collect, store, transmit, display and create derivative works of Your Data, and any Non-Phocas Applications and program code created by or for You using a Service, during the term of Us providing the Services to You and as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licences granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-Phocas Application or program code.

d. Licence by You to Use Feedback: You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free licence to use copy, disclose, license, distribute, exploit and incorporate into the Services in any form whatsoever any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services ("Feedback"), without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Your Confidential Information, and nothing in this Agreement limits Our right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

 

16. Confidentiality

a. Your Confidential Information includes Your Data.

b. Our Confidential Information includes the Services, the Software and Content and any other information that comes into Your possession or becomes known to You through Our dealings with You.

c. Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

d. Confidential Information does not include any information that:

i. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

ii. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;

iii. is received from a third party without breach of any obligation owed to the Disclosing Party; or

iv. was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party.

e. The Receiving Party will:

i. use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care);

ii. not use, or permit the use of, any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and

iii. except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein.

iv. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal advisors and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal advisors or accountants will remain responsible for such Affiliate’s, legal advisor’s or accountant’s compliance with this clause 16(e).

f. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that the Receiving Party is compelled by Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

g. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, except as permitted under this Agreement, the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at Law.

 

17. Representations and disclaimers

a. Each party represents that it has validly entered into this Agreement and has the legal power and authority to do so and that, if You are an entity, this Agreement and each Order Form is entered into by an officer, employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

b. Except to the extent prohibited by Law, all Services, Content, Software and Special Services are provided "as is". To the maximum extent permitted by Law:

i. We specifically disclaim all warranties whether express, implied, statutory or otherwise, including any implied warranty of merchantability, functionality, fitness for a particular purpose or non-infringement and any warranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness regarding any Service, Content, Software and Special Services; and

ii. We make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding any Service, Content, Software and Special Services, including without limitation any warranty that any one or more of the Services, Content, Software and Special Services:

A. timely, uninterrupted, complete, error-free or free of viruses or harmful components;

B. will operate in combination with any other hardware, software, system, or data; and/or

C. will meet You requirements or expectations;

iii. We make no representation, warranty or guarantee that any stored data will be accurate or reliable or that any stored data will not be lost or corrupted, or that errors or defects will be corrected, or that any content, including Your Data, will be secure or not otherwise lost or damaged;

iv. We are not responsible or liable for the accuracy of any information provided by any third party whether by reason of corruption during transmission to You or otherwise; and

v. We disclaim all Liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.

 

18. Limitation of liability

a. To the extent permitted by Law, in no event will either party have any liability to the other party for any lost profits, lost revenues, interruption of business, costs of delay, or indirect, special, incidental, reliance, consequential, exemplary or punitive damages, regardless of whether an action is in contract, tort (including negligence), strict liability or otherwise and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. This disclaimer will not apply to the extent prohibited by Law.

b. Our liability to You with respect to any single incident arising out of or related to this Agreement will not exceed the amount paid by You hereunder in the 12 months preceding the incident, provided that in no event will Our aggregate liability arising out of or in connection with this Agreement exceed the total amount paid by You hereunder. The above limitations will apply whether an action is in contract, tort (including negligence), strict liability or otherwise, and regardless of the theory of liability.  This clause is not intended to exclude or limit any rights which You may have under any Laws concerning any one or more of trade practices, competition, fair trading and consumer protection that cannot be excluded or limited, or under any other Law that cannot be excluded or limited.

19. Indemnification

You agree to fully indemnify and keep indemnified at all times Us, each Phocas Entity, each of Our employees, officers, directors, representatives and Affiliates, each employee, officer, director, representative and Affiliate of any Phocas Entities and each employee, officer, director and representative of each of Our Affiliates ("Indemnified Persons") from and against any Claims and Liabilities, (including legal costs and expenses on a full indemnity basis) suffered or incurred by or awarded against any one or more Indemnified Persons arising out of or relating to or in connection with directly or indirectly, any Claim by any person or persons where such Claim or Liability relates to or arises from or in connection with any one or more of Your use of the Services, Special Service, Software or Content, Your Data, a breach of this Agreement, a third party alleging that Your Data, or Your use of any Service, Special Service Software and/or Content is in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights and any violation of applicable Law by You.  This indemnity will continue notwithstanding termination of this Agreement.
  

20. Force Majeure

a. We will not be liable for any delay, interruption or failure to perform any of Our obligations under this Agreement where the delay, interruption or failure results from any cause beyond Our reasonable control, including without limitation any act of God, act of government, war, rebellion, insurrection any act of a public enemy, sabotage, terrorism, cyber terrorism, strike, lockout or other industrial disturbance, fire, storm, flood, earthquake, explosion, accident, epidemic, quarantine restriction, unavailability of data from a third-party vendor or supplier, transportation embargo, change of Law, internet service provider failure, interruption or delay, other service failures and problems inherent in the use of the internet and electronic communications or other systems beyond Our reasonable control or other similar causes beyond Our reasonable control (each a "Force Majeure").

b. If a delay, interruption or failure on Our part to perform any obligation(s) We have under this Agreement is caused by, or anticipated because of, Force Majeure, the performance of the obligation(s) will be suspended. If a delay, interruption or failure by Us to perform any obligation(s) We have under this Agreement because of Force Majeure exceeds thirty (30) days, We may in Our absolute discretion immediately terminate this Agreement by giving written notice to You.

 

21. Termination

a. A party may terminate this Agreement for cause in the following circumstances:

i. if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after receiving written notice of the breach; or

ii. if the other party becomes the subject of a petition in bankruptcy or any other application or proceeding for or relating to insolvency, administration, receivership, liquidation or assignment for the benefit of creditors.

b. If this Agreement is terminated by You in accordance with clause 21(a), the Relevant Entity will refund to You any prepaid fees which have been paid by You to cover Your use of the Services, the Software or the Content for any period of time after the effective date of termination. If this Agreement is terminated for any other reason, whether by You or by Us, You must pay any unpaid fees relating to the term specified in all Order Forms.

c. In no event will termination relieve You of Your obligation to pay any fees payable to any Relevant Entity for any period prior to and including the effective date of termination.

d. Upon written request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless such deletion or destruction is legally prohibited.?

e. Once this Agreement terminates:

i. You and all Users will no longer have any right to, and must immediately cease to, and procure all Users to immediately cease to, use or access, any Services, Software, Content and Special Services, or any information or materials that We make available to You under this Agreement;

ii. You must immediately remove and delete any Services, Software, Content and Special Services from Your systems and any systems used by Users as applicable (including any third party systems operated on Your behalf and); and

iii. immediately return, or procure the return of, all Software and Our Confidential Information in the power, possession or control of Your or any User, at Our request, provide written certification to Us that You have done so.

f. The clauses of this Agreement titled "Fees and payment for subscription for Services" "Proprietary rights and licenses," "Confidentiality," "Representations and disclaimers", "Limitation of liability," "Indemnification," "Termination," sub-clauses 21(b) to (e), "Governing law and jurisdiction", "Notices" and "General provisions" will survive any termination or expiration of this Agreement.

22. Governing law and jurisdiction

a. This Agreement and any disputes or claims arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or Claims) are governed by, and construed in accordance with, the Law of the Applicable Jurisdiction.

b. The parties irrevocably agree that the applicable jurisdiction will be the jurisdiction in which the Relevant Entity You have engaged to provide the Services, Software and/ or the Content is located ("Applicable Jurisdiction").

c. The parties irrevocably agree that the courts in the Applicable Jurisdiction have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

d. Each party agrees to the Applicable Jurisdiction without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts in the Applicable Jurisdiction.

e. Nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

f. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

 

23. Notices

a. A notice, consent, approval or other communication (each a "Notice") under or in connection with this agreement must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and:

i. delivered to that person's postal address;

ii. sent by pre-paid mail to that person's postal address;

iii. transmitted by fax to that person's fax number; or

iv. sent by email to that person's email address.

b. A Notice given to a person in accordance with this clause is treated as having been given and received:

i. if delivered to a person's address, on the day of delivery if a Business Day, otherwise on the next Business Day;

ii. if sent by pre-paid mail:

A. on the third Business Day after posting if the sender and the recipient are in the same jurisdiction;

B. on the seventh Business Day after posting if the sender and the recipient are in different jurisdictions;

iii. if transmitted by fax to a person's fax number and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day; or

iv. if sent by email and the sender does not receive a message from its internet service provider or the recipient's mail server indicating that it has not been successfully transmitted, on the day of sending if a Business Day, otherwise on the next Business Day.

c. For the purposes of this clause, Applicable Jurisdiction in the definition of "Business Day" shall mean the Applicable Jurisdiction of the recipient of the Notice.

d. For the purposes of this clause, the postal address of a person is the postal address which is specified below in clause 23(e) or another address of which that person may from time to time give notice to each other party.

e. We may provide notice to You via email or through You account. You may provide notice to Us by email to Phocas-noreply@phocassoftware.com, or:

i. If You are transacting with Phocas Ltd, notices are addressed to Phocas Limited, 2020 House, Middlemarch Business Park, Siskin Drive, Coventry CV3 4FJ, or such other addressed notified to You in writing;

ii. If You are transacting with Phocas Pty Ltd, notices are addressed to Phocas Pty Ltd of 501/35 Lime St, Sydney NSW 2000 or such other addressed notified to You in writing;

iii. If You are transacting with Phocas UK Ltd, notices are addressed to Phocas Limited, 2020 House, Middlemarch Business Park, Siskin Drive, Coventry CV3 4FJ or such other addressed notified to You in writing; and

iv. If You are transacting with Phocas Inc, notices are addressed to Phocas Inc of 241 Ridge Street, Ste. 200, Reno NV 8950 USA or such other addressed notified to You in writing.

f. Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

24. Assignment

a. You may not assign, transfer, novate, lease or otherwise dispose of Your rights and obligations under this Agreement without Our prior written consent. We will not unreasonably withhold Our consent to an assignment if the proposed assignee agrees in writing to be bound by the terms and conditions of this Agreement. We may assign transfer, novate, lease or otherwise dispose of Our rights and obligations under this Agreement (in whole or in part) without Your consent provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement.

b. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

25. General provisions

a. Export Compliance: The Services, Special Services, Software, Content, other technology We make available, and derivatives thereof may be subject to export Laws and regulations of jurisdictions. Each party represents that it is not named on any government denied-party list. You must not, and must not permit Users to, access or use any Service, Software or Content in any embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any export Law or regulation of any jurisdiction.

b. Anti-Corruption: You warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If You learn of any violation of the above restriction, You must promptly notify Us.

c. Entire Agreement and Order of Precedence: This Agreement, together with the Order Form(s) and Documentation, represent the entire agreement between You and Us regarding Your use of Services, Special Services, Software and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation

d. Variation: We may amend, vary or modify any one or more this Agreement, Documentation, Privacy and Cookies Policy and any other of Our policies at any time without notice to You. We will post a revised version of this Agreement, Documentation, Privacy and Cookies Policy and/or Our policies on the website as soon as practicable after their amendment, variation or modification.  The amended, varied or modified Agreement, Documentation, Privacy and Cookies Policy and/or any other policies of Ours will become effective upon posting ("Effective Date").  The continued use of the Services, Software, Content or Special Services by You or any User after the Effective Date will be deemed to be an agreement by You to be bound by this Agreement, Documentation, Privacy and Cookies Policy and/or other policies of Ours as amended, varied or modified.

e. Relationship of the Parties: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties except the agency relationship expressly set out in this Agreement.

f. Third-Party Beneficiaries: Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.

g. Minors: You confirm that in entering into this Agreement, You are over the age of eighteen (18) years. We do not engage with, or collect any information from anyone under eighteen (18) years of age. Our website, Software, Services and Special Services are all directed to people who are at least 18 years old or older.

h. Waiver: No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.?

i. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

j. Publicity: We may identify You as one of Our customers in Our promotional materials. You may request that We stop doing so by submitting your request on the website http://www.phocassoftware.com/hs/manage-preferences/unsubscribe-simpleat any time. Please note that it may take Us up to 30 days to process Your request.

SCHEDULE - Data Processing

Definitions

In this Schedule the following terms shall have the meanings given to them in the Data Protection Laws: Controller (or ‘controller’), Data Subject, Personal Data, Personal Data Breach, Processor (or ‘processor’), and Processing (and Process, Processes and Processed shall be construed accordingly), and:

Data Protection Laws	means the following legislation to the extent applicable from time to time: (i) the Data Protection Act 1998 until and including 24 May 2018: (ii) unless and until the GDPR is no longer directly applicable in the United Kingdom, the GDPR and any national implementing laws, regulations and secondary legislation, as amended from time to time, in the United Kingdom and then; (iii) any successor legislation to the GDPR or the Data Protection Act 1998;
Data Subject Request	means a request made by a Data Subject to exercise any rights of Data Subjects under the Data Protection Laws in connection with Personal Data Processed pursuant to this Schedule;
GDPR	means the General Data Protection Regulation (EU) 2016/679;
Phocas	means the relevant Phocas Entity Processing the Personal Data;
Processing Instructions	means the Customer’s instructions for how Phocas Processes the Personal Data pursuant to clause 1.4;
Services	shall mean the Services and the Special Services as those terms are defined under the Agreement; and
Transfer Safeguards	safeguards that are recognised under the Data Protection Laws for permitting the transfer of Personal Data outside of the European Economic Area.

1. Data protection

1.1 Compliance with Data Protection Laws and our relevant policies. Phocas and the Customer shall comply with all applicable requirements of the Data Protection Laws in connection with this Schedule.  This clause 1.1 is in addition to, and does not relieve, remove or replace Phocas’s or the Customer’s obligations under the Data Protection Laws.

1.2 Controller and Processor. The parties acknowledge that, for the purposes of the Data Protection Laws and this Schedule, the Customer is the Controller and Phocas is the Processor of any Personal Data Processed by Phocas pursuant to this Schedule.  You will not provide Personal Data to us unless it is absolutely necessary to enable us to provide our Services to you.

1.3 Customer obligations. Without prejudice to the generality of clause 1.1, the Customer:

1.3.1 is responsible for the integrity, security, maintenance and appropriate protection of its Personal Data which it receives, stores or transmits on or using its own systems, and ensuring its compliance with law and regulations, including Data Protection Laws, applicable to its own Processing and its use of the Services;

1.3.2 will ensure that it has all necessary consents and notices in place to enable the lawful transfer of the Personal Data to Phocas and to enable Phocas to Process the Personal Data as contemplated (either expressly or by implication) by this Schedule; and

1.3.3 will ensure that the Processing Instructions shall at all times be compliant with the Data Protection Laws and shall not cause Phocas to infringe Data Protection Laws.

1.4 Data Processing Details. The Annex (Data Processing Details) sets out the Customer’s instructions regarding the scope, nature and purpose of the Processing to be undertaken by Phocas, the duration of the Processing and the types of Personal Data to be Processed (Processing Instructions).  The Annex (Data Processing Details) may be updated from time to time by written agreement between Phocas and the Customer.

1.5 Phocas obligations. Without prejudice to the generality of clause 1.1, Phocas shall (in relation to any Personal Data Processed by Phocas in connection with the performance by Phocas of its obligations under this Schedule):

1.5.1 Process the Personal Data only in accordance with the Processing Instructions unless applicable law requires Phocas to Process the Personal Data other than in accordance with the Processing Instructions, in which case Phocas shall use reasonable endeavours to notify the Customer of any such requirement before Processing the Personal Data (unless applicable law prohibits such notification);

1.5.2 implement and maintain the Security Measures;

1.5.3 ensure that all personnel who have access to and/or Process the Personal Data are obliged to keep the Personal Data confidential;

1.5.4 only transfer Personal Data to a country outside the European Economic Area if Transfer Safeguards are in place (to the extent required by Data Protection Laws) for such transfer;

1.5.5 assist the Customer, at the Customer’s cost and expense, in responding to any Data Subject Request and in ensuring compliance with the Customer’s obligations under the Data Protection Laws with respect to security, breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;

1.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach (but Phocas shall not notify the Customer of routine security alerts or unauthorised access to traffic data that does not result in access beyond IP addresses or headers, or similar incidents);

1.5.7 at the Customer’s written request, and at the Customer’s cost and expense, delete or return the Personal Data and copies thereof on termination or expiry of this Schedule, unless Phocas is required by applicable law to store the Personal Data; and

1.5.8 maintain, in accordance with Data Protection Laws binding on Phocas, written records of all categories of Processing activities carried out by Phocas on behalf of the Customer under this Schedule.

1.6 Use of Sub-Processors.

1.6.1 The Customer consents to Phocas engaging the categories of third party Processors as set out in the Annex (Data Processing Details) (Sub-Processor), and shall allow any such Sub-Processor access to its systems so that the Sub-Processor may deliver the Services under the Agreement. Phocas shall notify the Customer of the identity of any such Sub-Processor upon receiving a written request from the Customer and shall use reasonable endeavours to respond to such request within 3 Business Days.  If Phocas engages a Sub-Processor, Phocas shall ensure that a written agreement is in place with the Sub-Processor that contains materially the same obligations to those set out in this clause 1.

1.6.2 The Customer agrees that any Sub-Processor may be based outside of the state, province, country or other jurisdiction in which the Customer has chosen to store its Personal Data, subject to Phocas complying with clause 1.5.4 of this Schedule.

1.6.3 Phocas shall be liable for any breach of this Schedule that is caused by any act, error or omission of its Sub-Processor.

1.6.4 If the Customer objects to the appointment or replacement of any Sub-Processor, its sole and exclusive remedy shall be to terminate its use of the affected Services on 14 days’ written notice in the manner provided in the Agreement, such notice to be given within 14 days of notice of the appointment or replacement of the Sub-Processor, and without prejudice to any fees incurred by the Customer for those Services before any such notice of termination takes effect; and such notice shall be ineffective if Phocas notifies the Customer that the proposed appointment or replacement shall not be effective to the Customer prior to expiry of the Customer’s notice of termination.

1.7 Liability.

1.7.1 Phocas shall in no circumstances be liable for any losses, liabilities, damages, costs and/or expenses, claimed by the Customer or any third party (including without limitation any Data Subject, regulatory or supervisory authority) under or in connection with this Schedule to the extent that these (or the circumstances giving rise to them) have been contributed to, or caused by, any breach of this Schedule by the Customer or pursuant to Phocas complying, or seeking to comply, with the Processing Instructions.

1.7.2 The parties agree that all liabilities between them under this Schedule will be subject to the limitations and exclusions of liability and other terms of the Agreement.

1.8 Term and termination. This Schedule will terminate contemporaneously and automatically with the termination or expiration of the Agreement.

1.9 Priority of terms.
To the extent that any provision of this Schedule conflicts with any provision of the Agreement or any other document(s) comprising the agreement between the parties, the terms of the Schedule shall, as to the specific subject matter of the Schedule, take precedence over the conflicting term(s) of the Agreement or such other document(s).

ANNEX TO THE SCHEDULE – Data processing details

1. Subject-matter of processing: Services provided by Phocas to the Customer pursuant to the Agreement

2. Duration of the processing: Subject always to any provision to the contrary in this Addendum, for the duration of the Agreement.

3. Nature and purpose of the processing: Phocas will process personal data as necessary to provide the Services pursuant to the Agreement and as may be instructed in writing by the Customer from time in its use of the Services

4. Type of Personal Data: Customer may submit Personal Data to Phocas in connection with the Services, the extent of which is determined and controlled by the Customer

5. Categories of Data Subjects: As determined and controlled by the Customer.

6. Processing Instructions:

• Processing in accordance with the Agreement

• Processing initiated by the Customer’s users in their use of the Services

• Processing to comply with other documented reasonable instructions from the Customer provided such instructions are consistent with the terms of the Agreement

7. Categories of Sub-Processors:

• Other companies in the Phocas group of companies who provide IT and system administration and out of hours support to Phocas.

• Service providers who provide IT, system administration and hosting services.