These Terms (the “Terms”) apply to all subscriptions to the Services by the Customer and govern the relationship between Trilby and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1 Interpretation
1.1 The definitions and rules of interpretation in this clause apply to these Terms.
“Authorised Reseller” means a reseller of the Services which is authorised by and has a contract in place with Trilby or Trilby’s authorised distributor.
“Authorised Users” means those employees of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 4.3.4.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.
“Customer” means the person who subscribes to the Services pursuant to these Terms.
“Customer Data” means the data inputted (for processing by the Services) by the Customer or the Authorised Users in the course of or for the purpose of using the Services which may include Personal Data (as defined in clause 7.3.2).
“Documentation” means the document made available to the Customer by Trilby online via https://support.trilbytv.co.uk or such other web address notified by Trilby to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
“Effective Date” means (if the Customer pays the Subscription Fees for the first year of the Services in accordance with clause 10.2) the date on which Trilby bills the payment card, or (if the Customer pays the Subscription Fees for the first year of the Services in accordance with clause 10.3) the date of the invoice issued by Trilby.
“Normal Business Hours” means 8.30am to 6pm local UK time, each Business Day.
“Payment Date” has the meaning given in clause 10.4.
“Privacy Notice” means an information notice for the purposes of Articles 13 and 14 of UK GDPR
“Quote” means a quote provided to the Customer by Trilby.
“Services” means the functionality made available by Trilby for use by the Customer and Authorised Users in accordance with these terms, as more particularly described in the Documentation.
“Software” means the online software applications used by Trilby to provide the Services.
“Subscriptions” means the subscriptions purchased by the Customer pursuant to clause 4.1 and, where applicable, 5.1, which entitle the Customer to access and use the Services and the Documentation in accordance with these Terms.
“Subscription Fees” means the subscription fees payable by the Customer to Trilby for the Services either as specified in a Quote agreed between the Parties or as notified to the Customer as part of the subscription process when the Customer subscribes to the Services.
“Subscription Term” has the meaning given in clause 15.1.
“Support Services” means the support provided by Trilby to the Customer in relation to setting up and configuring the Services.
“Trilby” means Trilby Multimedia Limited incorporated and registered in England and Wales with company number 04572637 whose registered office is at Suite 67, 123 Stratford Road, Shirley, Solihull B90 3ND.
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability of the Services (or any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device that they rely on or use) or data processed on or by them, and the term “Vulnerabilities” shall be construed accordingly.
1.2 Clause headings shall not affect the interpretation of these Terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses are to the clauses of these Terms.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Authorised Reseller Arrangements
2.1 If the Customer procures the Services under an agreement between the Customer and an Authorised Reseller (“Authorised Reseller Agreement”), these Terms set out the terms and conditions under which the Services will be provided by Trilby and shall apply to the Customer, except in relation to price and payment.
2.2 Notwithstanding anything to the contrary in these Terms, if the Customer subscribes to the Services via an Authorised Reseller, then:
2.2.1 the Customer shall pay the Authorised Reseller all applicable fees in accordance with the Authorised Reseller Agreement;
2.2.2 the Authorised Reseller Agreement is between the Customer and the Authorised Reseller and is not binding on Trilby and any disputes related to the Authorised Reseller Agreement shall be handled directly between the Customer and the Authorised Reseller; and
2.2.3 any claims for refunds hereunder shall be submitted by the Customer to the Authorised Reseller.
2.3 In the event of any conflict between these Terms and the Authorised Reseller Agreement, these Terms shall take precedence as between Trilby and the Customer.
3 Free Trial
3.1 Trilby offers to its customers a 30 day free trial of the Services. For such time as the Customer is using the Services pursuant to the free trial, it does so on an “as is” basis. Trilby provides no representations, warranties or undertakings in relation to the Services until the Customer is using the Services on a “paid for” basis.
3.2 During the continuance of the free trial, the Customer will use the Services strictly in accordance with these Terms, Trilby’s end user licence agreement and Trilby’s acceptable content policy, each as may be amended by Trilby from time to time.
4 Subscriptions
4.1 The Customer may purchase a Subscription online, via Trilby’s website, or via a Quote or an agreement with an Authorised Reseller. Subscriptions may be limited by the number of screens upon which the Customer may use the Services or by the location in which the Customer may use the Services. If the Customer would like to use the Services in more than one location, the Customer must purchase a Subscription for each location. If the Customer has purchased multiple Subscriptions, Trilby is entitled to exercise any of its rights in relation to the Subscription at a particular location, or in relation to the contract generally (all locations) if there is any breach of or non-compliance with these Terms by or in relation to any particular location.
4.2 Subject to the Customer purchasing the Subscriptions in accordance with clause 4.1 and clause 5.3, the restrictions set out in this clause 4 and the other terms and conditions of these Terms, Trilby hereby grants to the Customer a non-exclusive, non-transferable, revocable right, without the right to grant sub-licences, to use and to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
4.3 The Customer shall ensure that:
4.3.1 the maximum number of screens upon which it uses the Services shall not exceed the number of screens permitted by the Subscriptions it has purchased from time to time;
4.3.2 it shall only use the Services in the location permitted by the Subscriptions it has purchased from time to time;
4.3.3 each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep their password confidential;
4.3.4 it shall maintain a written, up to date list of current Authorised Users using the administrative tools provided within the Services and shall provide such list to Trilby within 5 Business Days of Trilby’s written request at any time or times;
4.3.5 it shall permit Trilby or Trilby’s designated auditor to audit the Services in order to establish the number of screens upon which the Software is being used, the location in which the Services are being used, the name and password of each Authorised User, usage of the Services by each Authorised User, and the Customer’s data processing facilities, to audit compliance with these Terms. Each such audit may be conducted no more than once per quarter, at Trilby’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
4.3.6 if any of the audits referred to in clause 4.3.5 reveal any breach of the Terms by or for the Customer, any Authorised User or any other person, the Customer shall pay such sums (such as for Subscriptions or other Services enjoyed by or for the Customer but not paid for) and procure such action, inaction or other things as may reasonably be required by Trilby to remedy such breach to Trilby’s reasonable satisfaction, and the Customer shall pay such sums to Trilby within [ten (10)] Business Days of the date of the relevant audit.
4.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is in breach of Trilby’s acceptable content policy, which can be located at https://www.trilbytv.co.uk/acceptable-content-policy/ as amended from time to time and Trilby reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
4.5 The Customer shall not:
4.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4.5.2 access all or any part of the Services and/or Software and/or Documentation in order to develop any product or service which competes with the Services and/or the Software and/or the Documentation; or
4.5.3 use the Services and/or Software and/or Documentation to provide services to third parties; or
4.5.4 subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software and/or Documentation available to any third party except the Authorised Users, or
4.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Software and/or Documentation, other than as permitted under these Terms; or
4.5.6 introduce or permit the introduction of, any Virus or Vulnerability into Trilby’s network and information systems.
4.6 The Customer shall use (and shall procure that each Authorised User shall use) all reasonable endeavours to prevent and detect any unauthorised access to, or use of, the Services, the Software and the Documentation and, in the event of any such unauthorised access or use, the Customer shall promptly notify Trilby.
4.7 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer or any other owner, person with any control or influence over, affiliate or partner of, or collaborator with, the Customer.
5 Additional subscriptions
5.1 Subject to clause 5.2 and clause 5.3, the Customer may, from time to time during any Subscription Term, purchase additional Subscriptions or additional storage in excess of that which is set out in the Quote (if any) or which was purchased online by the Customer. The current Subscription will be specified on the Service’s user interface.
5.2 If the Customer wishes to purchase additional Subscriptions or additional storage, the Customer shall notify Trilby or the Authorised Reseller, where applicable, in writing. Trilby shall evaluate such request for additional Subscriptions or additional storage and respond to the Customer with approval or rejection of the request.
5.3 If Trilby approves the Customer’s request to purchase additional Subscriptions or additional storage, the Customer shall pay to Trilby the relevant fees for such additional Subscriptions or additional storage in accordance with clause 10 and such fees shall be pro-rated from the date of activation by Trilby (each an “Additional Subscription Date”) to the next Payment Date.
5.4 Trilby may develop additional features from time to time and which may be offered to the Customer. If the Customer wishes to purchase such additional features, the terms shall be agreed in accordance with this clause 5 and these Terms will apply to any such additional features.
6 Services
6.1 Trilby shall, from the date upon which the Customer’s payment details are provided to Trilby in accordance with clause 10.2 or Trilby raises its invoice in accordance with clause 10.3 during the continuance of the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to these Terms.
6.2 Notwithstanding clause 6.1 above, Trilby shall be entitled at any time to suspend the Software and/or the Services in the event of any security or data breach, or if the Software and/or Services is affected by any Virus or Vulnerability.
6.3 Trilby may at any time carry out maintenance on the Software and/or Services and, if it does, the Customer will be notified by way of email and (for the Authorised Users of the Customers who are logged into the Service at the relevant time) a pop up in the user interface.
6.4 Trilby will provide the Support Services at no additional cost to the Customer. The Customer may access self-help knowledge bank resources at https://support.trilbytv.co.uk/ and Trilby may provide support by way of online chat, email, Twitter or telephone as updated by Trilby from time to time. The Customer acknowledges that Trilby may need to liaise with the Authorised User that requires support and that Trilby’s ability to provide such support will be directly impacted by the availability of that Authorised User. Trilby may vary the scope and specification of the Support Services in its sole and absolute discretion from time to time.
7 Data protection
7.1 The Parties acknowledge that they will each be an independent controller in relation to the Personal Data of the personnel of the other Party and will comply with their respective obligations under the Data Protection Legislation.
7.2 If the Customer Data contains Personal Data (“Relevant Personal Data”), the Customer appoints Trilby to be its Processor and the remainder of this clause 7 will apply.
7.3 In this clause 7:
7.3.1 "Data Protection Legislation" shall mean UK GDPR, the Data Protection Act 2018, and any other applicable laws relating to the protection of personal data and the privacy of individuals (all as amended, updated or re-enacted from time to time);
7.3.2 "Data Subject", "Controller", "International Organisation", “Personal Data”, "Processor" and "Processing" have the same meaning as in the UK GDPR;
7.3.3 “Regulator” means any independent public authority responsible for monitoring the application of the Data Protection Legislation in the UK or any other member state of the European Union;
7.3.4 “Third Country” means any country other than the UK, a European Union Member State or a member of the European Economic Area at the time of transfer of Personal Data; and
7.3.5 “UK GDPR” means the General Data Protection Regulation (EU) 2016/679 as applied in English law by the Data Protection Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
7.4 For the purposes of these Terms:
7.4.1 the types of Personal Data are: names of individuals, images of individuals and the categories of Data Subjects are set out in Trilby’s Privacy Notice, as such notice is amended and updated from time to time and may include: staff, individual customers, students and parents and carers; and
7.4.2 the nature/purpose of the Processing is to enable Trilby to provide the Services (which form the subject matter of the Processing) and the duration of the Processing shall be the term of this Subscription Term.
7.5 The Customer shall establish the lawful basis of any Processing of Relevant Personal Data that Trilby is required to carry out pursuant to these Terms and will ensure that all Data Subjects whose Personal Data is uploaded onto the Software (“Relevant Data Subject”) are provided with an appropriate Privacy Notice. As set out in Trilby’s acceptable content policy, the Customer will not upload and will procure that no Authorised User uploads, the Personal Data of any Data Subject who has not consented to the uploading of their Personal Data.
7.6 Trilby shall comply with its obligations under the Data Protection Legislation and shall, in particular:
7.6.1 process the Relevant Personal Data only to the extent necessary for the purpose of providing the Services and in accordance with the Customer’s written instructions;
7.6.2 implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular, from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Relevant Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the likelihood and severity of risk in relation to the rights and freedoms of the Relevant Data Subjects;
7.6.3 ensure that any employees or other persons authorised to Process the Relevant Personal Data are subject to appropriate obligations of confidentiality;
7.6.4 on request by the Customer and taking into account the nature of the Processing and the information available to Trilby, provide reasonable assistance to the Customer in ensuring compliance with its obligations under Articles 32 to 36 of the UK GDPR in respect of the Relevant Personal Data;
7.6.5 not transfer the Relevant Personal Data to a Third Country or to an International Organisation without the prior written consent of the Customer;
7.6.6 not engage any third party to carry out its Processing obligations under these Terms without obtaining the prior written consent of the Customer and, where such consent is given, procuring by way of a written contract that such third party will, at all times during the engagement, be subject to data processing obligations equivalent to those set out in this clause 7;
7.6.7 notify the Customer, as soon as reasonably practicable, about any request or complaint received from a Relevant Data Subject (without responding to that request, unless authorised to do so by the Customer) and assist the Customer, at the Customer’s cost, by technical and organisational measures, insofar as possible, for the fulfilment of the Customer’s obligations in respect of such requests and complaints;
7.6.8 notify the Customer without undue delay on becoming aware of a breach related to the Relevant Personal Data;
7.6.9 on request by the Customer, make available all information necessary to demonstrate Trilby’s compliance with this clause 7.6 and on reasonable advance notice in writing otherwise permit, and contribute to, audits carried out by the Customer (or its authorised representative) with respect to the Relevant Personal Data;
7.6.10 on termination or expiry of the Subscription Term, retain the Relevant Personal Data for a period of 60 days and then destroy, delete or return (as the Customer directs) all Relevant Personal Data and delete all existing copies of such data unless required by law to keep or store such Relevant Personal Data no later than 90 days from the date of termination or expiry.
7.7 The Customer acknowledges that clause 7.6.1 shall not apply to the extent that Trilby is required by law to Process the Relevant Personal Data other than in accordance with the Customer’s instructions and Trilby acknowledges that, in such a case, it must promptly inform the Customer of the relevant legal requirement prior to Processing (unless the law prohibits the provision of such information on important grounds of public interest).
8 Trilby’s obligations
8.1 Trilby undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Software or Services contrary to Trilby’s instructions, or modification or alteration of the Documentation, Software or Services by any person other than Trilby or Trilby’s duly authorised contractors. If the Services do not conform with the foregoing undertaking, Trilby will, at its expense, use reasonable commercial endeavours to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
8.3 Trilby:
8.3.1 does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses; and
8.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.4 Trilby warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
8.5 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Trilby shall be for Trilby to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Trilby. Trilby shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Trilby to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
9 Customer’s obligations
9.1 The Customer shall:
9.1.1 provide Trilby with:
(i) all necessary co-operation in relation to these Terms; and
(ii) all necessary access to such information as may be required by Trilby;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
9.1.2 without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;
9.1.3 carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner;
9.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms, Trilby’s end user licence agreement and Trilby’s acceptable content policy and shall be responsible for any Authorised User’s breach of these Terms;
9.1.5 procure that the Authorised Users and all other persons who use, or obtain access to or use of the Services, the Software and the Documentation for, from or via the Customer or any Authorised User, shall not infringe any right, title or interest (including intellectual property rights and rights of confidence) of Trilby or its licensors in or in relation to the Services, the Software or the Documentation;
9.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for Trilby, its contractors and agents to process the Customer Data and perform their other obligations under these Terms, including without limitation the Services;
9.1.7 ensure that its network and systems comply with the relevant specifications provided by Trilby from time to time; and
9.1.8 be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Trilby’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. The Customer warrants and represents that use of the Customer Data by or for Trilby for the purposes of performance of the Services shall not infringe the rights, title or interest (including intellectual property rights or rights of confidence) of any person.
10 Charges and payment
10.1 The Customer shall pay the Subscription Fees to Trilby for the Subscriptions in accordance with this clause 10.
10.2 Save as contemplated by clause 2, the Customer shall provide to Trilby via Paddle.com (or such equivalent payment gateway as is notified to the Customer from time to time) valid, up-to-date and complete credit or debit payment card details or approved purchase order information acceptable to Trilby and any other relevant valid, up-to-date and complete contact and billing details. The Customer hereby authorises Trilby to bill such payment card on the Effective Date and, thereafter, on the Payment Date (and on each Additional Screen Date), for the Subscription Fees payable as notified to the Customer as part of the subscription process when the Customer subscribes to the Services.
10.3 Save as contemplated by clause 2, if Trilby agrees to invoice the Customer otherwise than as contemplated by clause 10.2 then, upon Trilby receiving from the Customer written evidence satisfactory to Trilby of a valid purchase order raised by the Customer within its purchase ordering system, Trilby shall issue to the Customer for the Subscription Fees an invoice on the relevant Payment Date for the relevant year of the Subscription Term (or on the relevant Additional Screen Date). The Customer shall pay each invoice within 30 days from and including the date of such invoice.
10.4 For the purpose of clause 10.2 and clause 10.3, unless agreed otherwise in advance and in writing by Trilby, the “Payment Date” shall be each anniversary of the Effective Date.
10.5 If Trilby has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Trilby:
10.5.1 Trilby may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Trilby shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.6 All amounts and fees stated or referred to in these Terms:
10.6.1 shall be payable in pounds sterling;
10.6.2 are, subject to clause 14.3.2, non-cancellable and non-refundable;
10.6.3 are exclusive of value added tax.
10.7 Trilby shall be entitled to increase the Subscription Fees and/or the fees payable in respect of the additional Subscriptions purchased pursuant to clause 5.3 on the anniversary of the Effective Date upon 90 days’ prior notice to the Customer.
11 Proprietary rights
11.1 The Customer acknowledges and agrees that Trilby and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
12 Confidentiality
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party’s lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Trilby’s Confidential Information.
12.6 Trilby acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.8 The above provisions of this clause 12 shall survive termination of these Terms, however arising.
13 Indemnity
13.1 The Customer shall defend, indemnify and hold harmless Trilby against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
13.1.1 the Customer is given prompt notice of any such claim;
13.1.2 Trilby provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
13.1.3 the Customer is given sole authority to defend or settle the claim.
14 Limitation of liability
14.1 Except as expressly and specifically provided in these Terms:
14.1.1 the Customer assumes sole responsibility and liability for and in relation to all Customer Data uploaded to the Services, including establishing the lawful basis for all Processing of Relevant Personal Data;
14.1.2 Trilby shall have no liability for or in relation to any actions or omissions taken by Trilby at the Customer’s direction, or taken by the Customer or any other person for or on behalf of the Customer;
14.1.3 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 these Terms; and
14.1.4 the Services, Software and the Documentation are provided to the Customer on an “as is” basis.
14.2 Nothing in these Terms excludes the liability of Trilby:
14.2.1 for death or personal injury caused by Trilby’s negligence; or
14.2.2 for fraud or fraudulent misrepresentation.
14.3 Subject to clause 14.1 and clause 14.2:
14.3.1 Trilby shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and
14.3.2 Trilby’s total aggregate liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the Subscriptions during the 12 months immediately preceding the date on which the claim or other liability arose.
14.4 Nothing in these Terms excludes the liability of the Customer for any breach, infringement or misappropriation of intellectual property rights or rights of confidence of Trilby or its licensors.
15 Term and termination
15.1 These Terms shall apply to the Customer and its use of the Services on and from the date upon which the Customer commences use of the Services.
15.2 These Terms are incorporated into and form part of a contract between the Customer and Trilby on and from the Effective Date, and, unless otherwise agreed between Trilby and the Customer, each such contract shall continue, unless terminated earlier in accordance with this clause 15, for a period of twelve (12) calendar months (“Initial Term”). Trilby and the Customer may agree in writing to extend the Initial Term (or any Extended Term) for a period of twelve (12) calendar months (“Extended Term”). The Initial Term and any Extended Term shall, together, be referred to as the “Subscription Term”.
15.3 Unless it is extended under this clause 15.1 or terminated earlier in accordance with this clause 15, each contract that incorporates these Terms (and all associated Subscriptions) shall expire and terminate automatically without notice at the end of the relevant Initial Term. If it is extended under this clause 15.1, then unless it is terminated earlier in accordance with this clause 15, each contract that incorporates these Terms (and all associated Subscriptions) shall expire and terminate automatically without notice at the end of the relevant Extended Term. If any Subscription or contract incorporating these Terms is terminated early, the Customer shall not be entitled to any refund of the Subscription Fees.
15.4 The Customer may have multiple Subscriptions permitting it to use the Services at more than one location. If the Customer has multiple Subscriptions, the Customer may terminate or choose not to extend a Subscription without terminating the remaining Subscription(s) or the contract that incorporates these Terms (and all associated remaining Subscriptions).
15.5 If Trilby has a right to terminate these Terms, it can exercise that right by terminating the Subscription relating to any particular location(s) or by terminating the entire contract incorporating these Terms, and as an alternative it can elect to suspend the Services (in relation to any particular Subscription(s), or all Subscriptions and the entire Services).
15.6 If there is any breach of these Terms, Trilby’s intellectual property rights or Trilby’s confidentiality by or for the Customer or any Authorised User, whether in relation to any particular location, more than one location, or all locations, but Trilby does not in the circumstances have the right to terminate, Trilby can suspend the Services (and exercise any other rights or remedies that it may have by law or under these Terms), either in relation to any particular Subscription(s), or in relation to the entire Services.
15.7 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
15.7.1 the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than [thirty (30)] days after being notified in writing to make such payment;
15.7.2 the other party commits a material breach of any other of these Terms and (if such breach is remediable) fails to remedy that breach within a period of [fourteen (14)] days after being notified in writing to do so;
15.7.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
15.7.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.7.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
15.7.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.7.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
15.7.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
15.7.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.7.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within [14] days;
15.7.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.7.3 to clause 15.7.10 (inclusive);
15.7.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
15.7.13 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Terms.
15.8 On expiry or termination of the contract that incorporates these Terms for any reason:
15.8.1 all licences and permissions granted to the Customer and Authorised Users under these Terms shall immediately terminate and the Customer shall immediately cease (and shall procure that all Authorised Users shall immediately cease) all use of the Services, Software and the Documentation;
15.8.2 the Customer shall return and make no further use of (and shall procure that all Authorised Users shall make no further use of) the Documentation (and all copies of it, if any);
15.8.3 Trilby may destroy or otherwise dispose of any of the Customer Data in its possession unless Trilby receives, no later than ten (10) days after the effective date of the expiry or termination of the contract that incorporates these Terms, a written request for the delivery to the Customer of the then most recent copy of the Customer Data. Trilby shall use reasonable commercial endeavours to deliver the copy of the data to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from expiry or termination and all other sums payable to Trilby (whether or not due at the date of expiry or termination). The Customer shall pay all reasonable expenses incurred by Trilby in returning or disposing of Customer Data; and
15.8.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of expiry or termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of expiry or termination shall not be affected or prejudiced.
16 Force majeure
16.1 Trilby shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Trilby or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17 Variation
17.1 No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18 Waiver
18.1 No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19 Rights and remedies
19.1 Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
20 Severance
20.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
20.2 If any provision or part-provision of these Terms is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21 Entire agreement
21.1 These Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in agreeing to these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22 Assignment
22.1 The Customer shall not, without the prior written consent of Trilby, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
22.2 Trilby may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
23 No partnership or agency
23.1 Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24 Third party rights
24.1 These Terms does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25 Notices
25.1 Any notice required to be given under these Terms shall be in writing and shall be delivered by hand or sent by email, pre-paid first-class post or recorded delivery post to the other party at its address as notified to the other party from time to time, or such other address as may have been notified by that party for such purposes.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A correctly addressed notice sent by email, shall be deemed to have been received at the time of transmission, or, if this time falls outside Normal Business Hours, when Normal Business Hours resume.
26 Governing law
26.1 These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
27 Jurisdiction
27.1 Each party irrevocably agrees that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).