Kordl Licence Terms and Conditions

1.1 In these terms and conditions, the following expressions have the meanings set out in this clause 1.1 (unless the context otherwise requires):
Activation Date: the date from which the System is made available for use by Licensed Users, as confirmed by nkoda to the Licensee in writing;
Affiliate(s): any of the Licensee’s Group Companies and any Third Party Agent(s);
Back-End Application: the part of the System that will manage (a) the fulfilment by the relevant Licensed User of any request for a hire or rental order, ‘grand rights’ or theatrical licence, broadcast, streaming or synchronisation agreement, or commercial recording contract, that is received by that Licensed User from any Customer through the Front-End Application and (b) the production and issue to the Customer of any quote(s), contract(s) and/or invoice(s) associated with any such request;
Business Day: any day (other than a Saturday or Sunday) on which banks are open for non-automated business in London;
Confidential Information: has the meaning given to it in clause 11.1.1;
Customer: any customer of any Licensed User who has accepted (or otherwise agreed to) the terms and conditions set out in the EULA;
Delivery/Integration Work: any activity nkoda needs to undertake in order to (a) deliver a functioning version of the System to the Licensed Users and/or (b) integrate the System with the technology infrastructure of any Licensed User (including any data migration or conversion);
Digital Receipts: in respect of each transaction with a Customer that is processed through the Front-End Application, the amount of any digital surcharges paid to the Licensee, and/or to any Affiliate(s), as a result of the Customer using nkoda’s streaming service for public performance purposes (but excluding the total amount of any Permitted Deductions);
EULA: the end user licence agreement each Customer will need to enter into in order to be able to access and use the Front-End Application;
Excluded System Fault: has the meaning given in paragraph 4 of Schedule B;
Front-End Application: the part of the System allowing a Customer to place and pay for a rental order, and/or to request, negotiate and pay for a ‘grand rights’ licence or theatrical licence, a streaming, broadcast or synchronisation agreement, or a commercial recording contract, with any Licensed User, so that the Customer can undertake any live, recorded, broadcast or streamed performance of musical compositions, the relevant rights in which are owned/controlled by the Licensed User (including any musical compositions owned by third parties which the relevant Licensed User has the right to represent);
Good Industry Practice: the exercise of such skill, care and diligence as would reasonably be expected from a professional and experienced company operating in the software industry;
Group Company: any direct or indirect holding company or subsidiary of the Licensee, and any direct or indirect subsidiary of any such holding company (and Group Companies will be construed accordingly);
Group Sub-Licensee(s): each Group Company to whom the Licensee sub-licences its right to access and use the System for the Permitted Purposes, in each case in accordance with Section 6.2 of the System Licence Agreement;
Initial Licence Period: has the meaning given in Section 5.1(a) of the System Licence Agreement;
Intellectual Property Rights: patents, utility models, rights in or to inventions, all copyright(s) and related rights, trade marks, service marks, trade names, domain names, moral rights, rights in get-up, goodwill, the right to sue for passing off or unfair competition, design rights, rights in computer software, database rights, rights in data, rights in confidential information (including know-how and trade secrets) and any other intellectual or industrial property rights, whether registered or not, including (a) all applications for (and rights to apply for and/or be granted), renewals or extensions of, and rights to claim priority from, such rights and (b) all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, anywhere in the world;
IPR Infringement Claim: has the meaning given to it in clause 8.1;
Latest Activation Date: 30 April 2025, unless another Latest Activation Date is (a) agreed or determined by the Parties pursuant to clause 3 or (b) otherwise agreed by the Parties in writing;
Licence Fee: the licence fee in respect of the use of the System by the Licensed Users, which is payable by the Licensee to nkoda pursuant to Section 8 of the System Licence Agreement, for each Licence Year during the Initial Licence Period and any Renewal Period(s) (and Licence Fees will be construed accordingly);
Licence Year: the initial, then each successive, twelve (12) month period during the Initial Licence Period, and any Renewal Period(s), and for the avoidance of doubt (a) any such period does not need to correspond to a calendar year, or to start (or end) at the start (or end) of a calendar month and (b) Licence Year 1 means the first Licence Year of the Initial Licence Period, which will start on the Activation Date;
Licensed Users: the Licensee, any Group Sub-Licensee(s) and any Third Party Agent(s) (and Licensed User will be construed accordingly);
Licensee: the Licensee named (and defined as such) in the System Licence Agreement;
Licensee Default: (a) any obligation imposed on the Licensee, under the System Licence Agreement, not having been met or satisfied in any material respect or to any material extent, by the Licensee, by the relevant date for such obligation to be met or satisfied according to the System Licence Agreement and/or (b) any data, feedback, response or information reasonably requested or required by nkoda, in order for it to perform its obligations under the System Licence Agreement, not being provided or made available to nkoda, by the relevant Licensed User(s), by any reasonable deadline or date specified by nkoda and/or (c) nkoda not having been given sufficient access to the relevant personnel or systems of any Licensed User in order for nkoda to perform its obligations under the System Licence Agreement, by any reasonable deadline or date specified by nkoda;
Licensee Software: any software program or application that is licensed or supplied to any Licensed User(s) by any third party (not by nkoda);
Offline Transactions: means any order initiated by a Customer via the Front-End Application, or by the Licensee (or any other Licensed User) logging an order on behalf of a Customer in the Back-End Application, where the order is not then adequately progressed to a stage where any monetary value is applied to the order within the Back-End Application (for example, but without limitation, due to (a) a failure by the Licensee, or any other Licensed User, to update the order information in the Back-End Application (b) a pause in the relevant hire/rights components on the order board or (c) the absence of any associated quote(s), contract(s) or invoice(s) in the Back-End Application);
Parties: nkoda and the Licensee (and Party will be construed accordingly);
Permitted Deductions: in respect of the relevant transaction with the Customer that is processed through the Front-End Application, (a) any commission paid by the Licensee, or any of its Group Companies, to any Third Party Agent(s) and (b) any VAT paid by the Customer;
Permitted Purposes: the use of the Back-End Application, by the Licensed Users, to fulfil hire orders that are placed, and/or (as applicable) to grant licences that are requested, through the Front-End Application, by Customers of the Licensed Users, in each case in connection with the hire and licensing activities that the Licensed Users carry out, from time to time, in respect of (a) their own respective music repertoires or catalogues and (b) any other music repertoires or catalogues that they (or any of them) represent or administer, in any capacity, on behalf of any Group Company or any other third party rights holder(s);
Quarterly Surcharges: the surcharges described in Section 9 of the System Licence Agreement;
Renewal Period: has the meaning given to it in Section 5.1(b) of the System Licence Agreement;
Support Services: the support/maintenance services to be provided by nkoda to the Licensed Users and their Customers in relation to the System, in each Licence Year, as set out in Schedule B;
System: the centralised music hire library management system, comprising the Front-End Application and the Back-End Application, excluding any Licensee Software but including (a) any Third Party Software that forms part of the System and (b) any updates or upgrades to the System that are made available by nkoda from time to time;
System Charges: the Licence Fee, Quarterly Surcharges and other amounts payable to nkoda, pursuant to clause 5, in respect of the use of the System by the Licensed Users and their Customers;
System Documentation: the supporting documents and other materials relating to the System provided by nkoda to the Licensed Users (including any explanatory and/or training documents, and any other explanatory and/or training materials, created by nkoda);
System Licence Agreement: the licence agreement entered into between (1) nkoda and (2) the Licensee, governing the use of the System by the Licensee, which incorporates these terms and conditions;
Third Party Software: any software program or application which forms part of the System but which is licensed or supplied to nkoda by any third party (and is not Licensee Software);
Transaction Value: the aggregate amount of the hire, rental and licence fees received by the Licensee, and by any Affiliate(s), from the relevant transaction with the Customer that has been processed through the Front-End Application, excluding (a) any Digital Receipts and (b) the total amount of any Permitted Deductions; and
VAT: value added tax or any other tax imposed in substitution for it.

1.2 In these terms and conditions:

1.2.1 clause, Schedule and paragraph headings do not affect the construction or interpretation of these terms and conditions, references to clauses are to the relevant clauses in these terms and conditions, references to Schedules are to the relevant Schedule to these terms and conditions, references to paragraphs are to the corresponding paragraphs of the relevant Schedule;

1.2.2 references to a “person” include any natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person's successors and permitted assigns, references to a “company” include any company, corporation or other body corporate, wherever and howsoever incorporated or established, and references to a Party includes its successors-in-title and permitted assigns;

1.2.3 references to (a) any statute, statutory provision or piece of subordinated legislation are references to the same as they are in force, as at the date of the System Licence Agreement, taking account of any amendment or re-enactment (and include any statute, statutory provision or piece of subordinate legislation which they amend or re-enact), provided always that, as between the Parties, no such amendment or re-enactment will apply for the purposes of these licence terms and conditions to the extent that it would impose any new or extended obligation, liability or restriction on, or it would otherwise adversely affect the rights of, any Party and (b) a statute or statutory provision include any subordinate legislation made under that statute or statutory provision as at the date of the System Licence Agreement;

1.2.4 references to “writing” or “written” include e-mail (but not facsimile, text message or WhatsApp message), references to any other document are a reference to that other document as varied or novated (in each case, other than in breach of the terms of that other document) at any time, words in the singular include the plural (and vice versa), references to one gender include a reference to all other genders, and “holding company” and “subsidiary” have the meanings given in section 1159 of the Companies Act 2006;

1.2.5 any phrase preceded by the terms “including”, “include”, “in particular” or any similar expression will be construed as illustrative and will not limit the scope or sense of the words preceding those terms;

1.2.6 a reference to any English action, remedy, judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most closely approximates to the English equivalent in that jurisdiction; and

1.2.7 all references to the “System” are deemed, for all purposes, to include a reference to each of the constituent sections, parts, components, workflows and other features of each version or iteration of the System, including each version or iteration of the Front-End Application and the Back-End Application (and each of their respective constituent sections, parts, components, workflows and other features).

2.1 If nkoda is unable to progress or complete any aspect of the Delivery/Integration Work because of any Licensee Default, because of any other event, situation or circumstances beyond nkoda’s reasonable control, or because of any other matter that nkoda was not aware of, and as a result the Latest Activation Date needs to be changed, then: 

2.1.1  nkoda will promptly (a) notify the Licensee of the relevant Licensee Default and how it can be remedied, or (as applicable) notify the Licensee of the relevant event, situation or circumstance that is beyond nkoda’s reasonable control or that nkoda was not otherwise aware of; and (b) propose how long nkoda considers that the progress or completion of the Delivery/Integration Work will need to be delayed pending the remedy of the Licensee Default or (as applicable) pending the resolution of the event, situation, circumstance or matter that is beyond nkoda’s reasonable control or it was not otherwise aware of; and

2.1.2 the Parties will then promptly enter into reasonable and good faith negotiations to agree a revised Latest Activation Date in accordance with clause 3.2 (subject always to clause 3.3).

2.2 Any negotiations conducted between the Parties pursuant to clause 2.1, regarding any proposed change to the Latest Activation Date, will be conducted as follows:

2.2.1 the Parties will convene, as soon as reasonably practicable, to try to agree the change to the Latest Activation Date, but if the Parties are unable to agree on the change to the Latest Activation Date, within 14 days of the relevant notification from nkoda (or any longer period agreed by the Parties in writing), the matter will be referred to the Chief Executive Officer of each Party for attempted resolution; and

2.2.2 if the Chief Executive Officers of the Parties are unable to resolve the matter within 30 days of the relevant notification from nkoda, or any longer period agreed by the Parties in writing, (a) the matter will be deemed to be a dispute between the Parties which will be dealt with by expert determination pursuant to clause 14.3 or mediation pursuant to clause 14.4 and (b) the Delivery/Integration Work will be treated by the Parties as having been suspended until the dispute has been resolved by the Parties pursuant to clause 2.2.2(a).

2.3 Any change to the Latest Activation Date that is agreed by the Parties (or, if applicable, that is determined by an expert or by way of a mediation between the Parties) pursuant to the foregoing provisions of this clause 2, will not:

2.3.1 require or trigger, or otherwise cause, any increase or decrease in any of the System Charges;

2.3.2 disregarding (in each case) any period of suspension in accordance with clause 2.2.2(b), result in the Latest Activation Date being postponed by more than 90 days, unless a longer postponement is required due to (a) a Licensee Default (including the extent of any such Licensee Default) (b) the length of time it has taken the Parties to resolve any dispute pursuant to clause 2.2.2(a) and/or (c) the suspension of the Delivery/Integration Work pursuant to clause 2.2.2(b).

3.1 The use of any Licensee Software that is integrated with the System from time to time, at the request of the Licensee or any other Licensed User, will be subject to such separate terms and conditions as are notified to the Licensee and/or the relevant Licensed User(s), at the relevant time, and:

3.1.1 the costs of licensing, installing, using, sub-licensing (if applicable), maintaining and supporting such Licensee Software will be borne solely and exclusively by the Licensee or the relevant Licensed User(s); 

3.1.2 the negotiation of the terms and conditions governing the licensing, installation, use, sub-licensing (if applicable), maintenance and support of such Licensee Software will be the sole and exclusive responsibility of the Licensee or the relevant Licensed User(s); and

3.1.3 the Licensee undertakes to nkoda (a) to comply with the terms and conditions governing the licensing, installation, use, sub-licensing (if applicable), maintenance and support of any such Licensee Software and (b) to procure that all the relevant Licensed Users(s) comply with such terms and conditions.

4.1 When the System is ready to be used by the Licensed Users, nkoda will notify the Licensee and provide reasonable instructions to the Licensee, including any required activation codes or licence keys.

4.2 It is the Licensee’s responsibility to ensure that (a) its computer systems and network connections, and the computer systems and network connections of the other Licensed Users, are (on an ongoing basis) capable of accessing and using the System and (b) the System is accessed and used by the Licensee, and the other Licensed Users, in accordance with ongoing instructions and guidance provided by nkoda.

4.3 Schedule A will apply in respect of (a) the transfer of any personal data by the Licensee, and any Group Sub-Licensee(s), to nkoda for use within the System and (b) the processing of any such personal data by nkoda within the System.

4.4 nkoda will provide the Support Services to the Licensed Users and their respective Customers, during each Licence Year, in accordance with Schedule B. Any services provided by nkoda to any Licensed User(s), other than those expressly described in the System Licence Agreement, will be charged to the Licensee at nkoda’s standard charges which are in force at the relevant time.

5.1 nkoda will charge the Licensee, and the Licensee will pay to nkoda, pursuant to this clause 5 (a) the Licence Fee, for each Licence Year, in accordance with Section 8 of the System Licence Agreement (b) the Quarterly Surcharges in accordance with Section 9 of the System Licence Agreement (c) the Customer Surcharge on any Offline Transactions in accordance with Section 10 of the System Licence Agreement (d) any nkoda expenses approved by the Licensee in accordance with clause 5.3 and (e) any VAT due, in respect of the foregoing amounts, in accordance with clause 5.4.

5.2 Each Licence Fee will be invoiced by nkoda to the Licensee, and will be payable by the Licensee to nkoda, in full and in cleared funds, and in the currency specified in the System Licence Agreement (a) if the Licensee has received nkoda’s invoice for the relevant Licence Fee, prior to the start of the applicable Licence Year, within 14 days of the start of the relevant Licence Year or (b) if the Licensee has not received nkoda’s invoice for the relevant Licence Fee, prior to the start of the applicable Licence Year, within 14 days of the date on which the Licensee receives nkoda’s invoice for the Licence Fee for that Licence Year.

5.3 nkoda will obtain the prior written approval of the Licensee if nkoda wishes to charge the Licensee, or any other Licensed User, any travel, accommodation and/or subsistence expenses that are, or will be, incurred by any nkoda employees or contractors who are requested or required by the Licensee to attend any Licensee site(s), or the site(s) of any other Licensed User(s), at any time in connection with the System and/or the System Licence Agreement. Any such approved expenses will be (a) payable by the Licensee in addition to the System Charges (b) invoiced separately by nkoda and (c) payable by the Licensee within 14 days of receiving nkoda’s invoice for the approved sum.

5.4 Unless provided otherwise in the System Licence Agreement, (a) the System Charges, and any approved nkoda expenses payable pursuant to clause 5.3, are exclusive of VAT (b) any VAT arising in respect of any supply of services by nkoda under the System Licence Agreement will, on the issue of a valid VAT invoice by nkoda in relation to that supply of services, be paid to nkoda by the Licensee in addition to the applicable System Charges or approved nkoda expenses (as the case may be) and (c) the Licensee will pay the System Charges, any approved nkoda expenses, and all VAT thereon, by electronic bank/funds transfer to the bank account specified on the corresponding nkoda invoice.

5.5 nkoda reserves the right to charge the Licensee interest, in respect of the late payment of any sum(s) due to nkoda under the System Licence Agreement, at the rate of five per cent (5%) per annum above the Bank of England’s base sterling lending rate from time to time, from the due date for payment of the relevant sum until it is paid to nkoda in full and in cleared funds (before and after judgment). Such interest will accrue daily, on the basis of a 365 day year.

6.1 The Licensee will not at any time or for any purpose, whether acting alone or jointly with any Affiliate or other company or person(s), or in any other capacity or through any third party:

6.1.1 install or use the System, or permit it to be installed or used by (or on behalf of) any third party, other than pursuant to the System Licence Agreement and for the Permitted Purposes;

6.1.2 make any copy (including any back‑up copy) of the System, or decompile or decode, reverse-engineer (except as permitted by law), disassemble, create any derivative works from, translate, convert, modify, adapt or repair (or seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs of) the System, or try to do any of the foregoing;

6.1.3 interfere with, or attempt to circumvent or interfere with, any licence key mechanism within the System, or attempt to circumvent or interfere with any other security feature or mechanism within the System;

6.1.4 assign, transfer, sell, re-sell, sub-licence (except as expressly permitted by the System Licence Agreement), distribute, lease, rent, loan, charge, or otherwise encumber, the System, or any right(s) in respect of the System, or attempt to do any of the foregoing;

6.1.5 use the System on behalf of any third party, or make the System available for use by any third party (other than Customers and other Licensed Users) or attempt to do so; or

6.1.6 remove or alter any copyright (or equivalent/similar) notices or any other proprietary notices or logos, that the System causes to be displayed, or which are otherwise used within the System at any time, or attempt to do so.

7.1 The Licensee acknowledges and agrees, for itself and on behalf of every other Licensed User, that: 

7.1.1 the right to use the System is licensed (not sold) to the Licensee, and can be sub-licensed by the Licensee to any Group Sub-Licensee(s) in accordance with Section 6.2 of the System Licence Agreement, but (a) the Licensee will have no rights in connection with the System except for those expressly granted to it under the System Licence Agreement (b) no Group Sub-Licensee(s) will have any rights in connection with the System except for those expressly sub-licenced to them, by the Licensee, in accordance with Section 6.2 of the System Licence Agreement and (c) no Third Party Agent(s) will have any rights in connection with the System except for those expressly licenced to them, by nkoda, pursuant to Section 7 of the System Licence Agreement;

7.1.2 the System Licence Agreement does not automatically permit or entitle any Affiliate to access or use the System, the System Documentation or any of the Support Services, for any purpose;

7.1.3 neither the Licensee, nor any of the other Licensed Users, will have any right to access or receive any source code of the System at any time;

7.1.4 all Intellectual Property Rights developed in the course of (or otherwise in connection with) designing, developing, building, testing, delivering, integrating or improving the System are owned solely and exclusively by nkoda;

7.1.5 neither the Licensee nor any other Licensed User, by virtue of the System Licence Areement or their use of the System, will obtain (or be entitled to claim) any right, title or interest in or over the System (except for, in the case of the Licensed Users, the right to use the System pursuant to the System Licence Agreement);

7.1.6 all rights in the System not expressly granted to the Licensee pursuant to the System Licence Agreement, sub-licensed to any Group Sub-Licensee(s) pursuant to Section 6.2 of the System Licence Agreement, or licenced to any Third Party Agent(s) pursuant to Section 7 of the System Licence Agreement, are hereby expressly and irrevocably reserved by nkoda.

7.2 The use of the System by the Licensed Users (and all goodwill derived or accruing from that use) will at all times operate and accrue for the benefit of nkoda. If any goodwill accrues (a) through any use of the System by the Licensee, it hereby irrevocably assigns to nkoda all right, title and interest in, and to, such goodwill or (b) through any use of the System by any other Licensed User, the Licensee irrevocably undertakes to procure that the relevant Licensed User will assign to nkoda all right, title and interest in, and to, such goodwill.

8.1 Subject to the further provisions of this clause 8, nkoda will indemnify the Licensee from and against all liabilities, costs, expenses, losses and damages (including reasonable and properly incurred legal and other professional costs and expenses) suffered or incurred by the Licensee arising out of, or in connection with, any claim that the use of the System or the System Documentation by the Licensee, during any Licence Year, infringes any third party Intellectual Property Right(s) (an IPR Infringement Claim), provided that the Licensee:

8.1.1 gives written notice (including full particulars) to nkoda of any such IPR Infringement Claim as soon as reasonably practicable after becoming aware of the same;

8.1.2 does not, at any time, admit any liability in respect of, or defend, settle or compromise (or attempt to defend, settle or compromise), the IPR Infringement Claim except pursuant to the prior written instructions, or with the prior written consent, of nkoda (which nkoda will not unreasonably withhold or delay);

8.1.3 acts in accordance with the reasonable written instructions of nkoda when admitting any liability in respect of, or defending, settling or compromising, or seeking (or proposing) to defend, settle or compromise, any such IPR Infringement Claim;

8.1.4 promptly provides to nkoda all information and assistance nkoda reasonably requires in respect of (as the case may be) the conduct of the Licensee’s defence of, any admission of liability by the Licensee in respect of, or the Licensee’s attempted or proposed settlement or compromise of, the IPR Infringement Claim (including, in each case, complete copies of all relevant pleadings, court documents and other documents and correspondence);

8.1.5 procures that any Group Sub-Licensee also complies with clauses 8.1.1 to 8.1.4 above (inclusive).             

8.2 In the event of any IPR Infringement Claim, nkoda will be entitled, at its sole discretion, to either (a) procure the right for the Licensee, and the other Licensed Users, to continue using the System and the System Documentation or (b) make such modifications or adjustments to the System and/or the System Documentation, so that they are non‑infringing, without materially affecting the System’s functionality.

8.3 nkoda will have no liability to the Licensee, or any other Licensed User, in relation to any IPR Infringement Claim, if (and to the extent that) the IPR Infringement Claim results from:

8.3.1 any alteration, modification or adjustment to the System (or any other action or activity that is prohibited under clause 6), by any Licensed User or Affiliate, or by any Customer, which has not been authorised or approved by nkoda in writing and in advance;

8.3.2 any other use or operation of the System, by any Licensed User or Affiliate, that is not for the Permitted Purposes, or is not otherwise in accordance with the System Licence Agreement;

8.3.3 any installation, use or operation of a non-current version of the System by any Licensed User or Customer (if, and from the point that, a current version of the System had been made available to the relevant Licensed User or Customer, and the IPR Infringement Claim would, or could, have been avoided by the installation, use or operation of the current version of the System by that Licensed User or Customer);

8.3.4 any installation, use or operation of the System (by any Licensed User, Affiliate or Customer) in combination with any Licensee Software, if the integration or combination of the System with that Licensee Software has not been expressly approved by nkoda in writing; or

8.3.5 any installation, use or operation of the System by any Customer that is not in accordance with the EULA.

8.4 This clause 8 sets out the sole and exclusive remedies of the Licensee, and any other Licensed User or Affiliate (however arising, including in contract, tort, negligence or otherwise) in connection with any IPR Infringement Claim.

9.1 Subject to the limitations on its liability set out in clause 10, nkoda warrants to the Licensee that:

9.1.1 it has the right, power, capacity and authority to enter into the System Licence Agreement and to licence the necessary rights to the Licensee, to access and use the System, in accordance with the System Licence Agreement, and that the System Licence Agreement is signed by a duly authorised signatory of nkoda;

9.1.2 it will provide the Support Services to the Licensee in accordance with Good Industry Practice using competent personnel with appropriate skills, qualifications and experience;

9.1.3 it will, in accordance with Good Industry Practice, protect against the inclusion of viruses or malicious software in the System (including in any Third Party Software);

9.1.4 it will take reasonable steps, and act promptly, to address any issues identified by the Licensee which adversely and materially affect the performance or functionality of the System, in each case in accordance with and as further described in (and subject always to) the provisions of Schedule A; and

9.1.5 it will back-up the Licensee’s data, and the data of any Group Sub-Licensee(s), on the System at least daily and maintain such backed-up data in accordance with Good Industry Practice and the System Licence Agreement.

9.2 The Licensee acknowledges (on behalf of itself and every other Licensed User) that the System is provided “as is” and subject to the general exclusion set out in clause 9.4 below. Without prejudice to the generality of the foregoing provision, nkoda expressly does not warrant (a) that the use of the System by any Licensed User, nor the provision of the Support Services, will be uninterrupted or free from any errors or defects (b) that the System will meet the specific business requirements of any (or all) of the Licensed Users or (c) that the System will be compatible with any specific third party software or hardware.

9.3 The Licensee warrants to nkoda that it has the right, power, capacity and authority to enter into the System Licence Agreement, and that the System Licence Agreement will be executed by a duly authorised signatory of the Licensee.

9.4 Subject to the foregoing provisions of this clause 9, all other conditions, warranties or other terms or provisions which might otherwise have effect between the Parties, or which might otherwise be implied or incorporated into the System Licence Agreement, whether by statute, common law or otherwise, are hereby expressly excluded to the fullest extent permissible under applicable laws, including any and all implied conditions, warranties or other terms or provisions regarding the quality or fitness for purpose of the System, the System Documentation and/or the Support Services.

10.1 This clause 10 sets out the maximum liability of the Parties (including any liability for the acts and omissions of their respective employees, agents and sub-contractors) in connection with (a) any breach of this agreement and (b) any representation, warranty or other statement set out in, and any tortious act or omission (including negligence) under or in connection with, the System Licence Agreement.

10.2 Nothing in the System Licence Agreement excludes or limits:

10.2.1 either Party’s liability to the other Party for (a) any death or personal injury resulting from a Party’s own negligence, or the negligence of any of that Party’s employees, agents or sub-contractors (b) any fraud or fraudulent misrepresentation (c) any other act, omission, or liability which cannot be limited or excluded by law (d) any breach of the provisions of clause 11 or (e) any breach of the Parties’ respective data protection obligations under Schedule A;

10.2.2 the liability of the Licensee to nkoda for any material breach of clause 6; or

10.2.3 nkoda’s liability to indemnify the Licensee in respect of any IPR Infringement Claim under clause 8.1 except for (and subject to) clauses 8.1.1 to 8.1.5 inclusive, clause 8.3 and clause 8.4.

10.3 Subject to clause 10.2:

10.3.1 nkoda’s aggregate liability to the Licensee, under the System Licence (including these terms and conditions), will not in any event exceed the total amount of the Licence Fees paid by the Licensee to nkoda, in respect of the use of the System by the Licensed Users, as at the date such liability arises;

10.3.2 the liability of the Licensee to nkoda, under the System Licence Agreement, will be limited to the Licensee’s liability to pay any System Charges (and any approved expenses) that are properly due and payable to nkoda as at the date such liability arises; 

10.3.3 neither Party will be liable to the other Party for any loss of savings or commercial opportunity, loss of goodwill or damage to reputation, or special, indirect or consequential loss (even if any such loss or damage was reasonably foreseeable and/or either Party was advised or aware of the possibility of the other Party incurring any such loss or damage); and

10.3.4 neither Party will have any liability to the other Party, in respect of any breach or other matter referred to in this clause 10, unless the Party in question (a) has received written notice of the breach or other matter from the other Party, within 30 days of the date on which the other Party first became aware of the circumstances giving rise to the breach or other matter (or from the date on which the other Party ought reasonably to have become so aware) and (b) has been given at least 14 days, from the date of receiving such written notice, to remedy the relevant breach or other matter if remediable (it being agreed that failure to pay a sum in full by a specified date will be deemed to be remediable if it is paid in full within such 14 day period).

10.4 This clause 10 will not confer any right or remedy on a Party to which they would not otherwise be legally entitled.

11.1 Subject to the provisions of clause 11.2, each Party undertakes to the other Party:

11.1.1 to keep strictly private and confidential all information (whether written, oral or otherwise), concerning the business, affairs, technology, know-how, Intellectual Property Rights, assets, finances, strategy, products, suppliers and customers of the other Party that it obtains or receives as a result of, or in connection with, (a) the discussions leading up to the execution of the System Licence Agreement or (b) the other Party negotiating, entering into or performing the System Licence Agreement (Confidential Information) (and for the avoidance of doubt, all information relating to the System, the System Documentation and/or the Support Services, including any technical or operational specifications or data, will form part of nkoda’s Confidential Information);

11.1.2 without the prior written consent of the other Party, not to disclose the other Party’s Confidential Information to any other person save to those of its employees, agents, sub-contractors and advisers who (a) are directly involved in the negotiation, implementation, performance and/or enforcement of the System Licence Agreement and (b) have a need to know the other Party’s Confidential Information for that purpose;

11.1.3 to use the other Party’s Confidential Information solely in connection with the implementation and performance of the System Licence Agreement, and the operation of the System, and not for its own benefit or the benefit of any third party; and

11.1.4 to make those of its employees, agents, sub-contractors and advisers, who are directly involved in the negotiation, implementation, performance and/or enforcement of the System Licence Agreement, aware of the confidentiality of the other Party’s Confidential Information, and of the provisions of this clause 11.1, and (without prejudice to the generality of the foregoing) to take all such steps as are reasonably necessary, from time to time, to ensure compliance by its employees, agents, sub-contractors and advisers with this clause 11.1.

11.2 The provisions of clause 11.1 will not apply to either Party’s Confidential Information to the extent such Confidential Information (a) is trivial or obvious (b) was already in the receiving Party’s knowledge or possession other than as a result of a breach of this clause 11 (c) is in, or comes into, the public domain otherwise than as a result of a breach of clause 11.1 or (d) is required to be disclosed by any law, court order, governmental body or regulatory authority.

11.3 The provisions of clauses 11.1 and 11.2 will remain in full force and effect following any expiry of the System Licence Agreement, or if the Licensee’s, and/or any other Licensed User’s, use of the System is terminated in accordance with these terms and conditions.

11.4 No announcement or other public disclosure concerning the System Licence Agreement, or any of the matters referred to in it, will be made by (or on behalf of) either Party without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by any law, court order, governmental body or regulatory authority.

11.5 Each Party will comply with its obligations, and may exercise its rights and remedies, under Schedule A. If, and to the extent, any Party’s Confidential Information is Protected Data (as defined in Schedule A), that Confidential Information may only be disclosed or used by nkoda if and to the extent such disclosure or use complies with Schedule A.

12.1 Termination by Licensee before the Activation Date: the Licensee will have the right to terminate the System Licence Agreement with immediate effect, by giving written notice of such termination to nkoda:

12.1.1 if nkoda fails to make the System available for use by the Licensed Users, and their respective Customers, on or before the Latest Activation Date (including any revised Latest Activation Date which the Parties have agreed, or which has been determined, in accordance with clause 2); or

12.1.2 if, at any time before the Activation Date, nkoda is unable to pay its debts as they fall due, within the meaning of section 123 of the Insolvency Act 1986, or if (a) nkoda ceases (or threatens to cease) trading all, or any material part, of its business (b) nkoda convenes a formal meeting of its creditors, or any proposal is made for any voluntary arrangement in respect of nkoda, pursuant to Part I of the Insolvency Act 1986, or any proposal is made for any other formal composition, scheme or arrangement with (or formal assignment for the benefit of) nkoda’s creditors generally (c) any trustee, receiver, administrative receiver or similar (or equivalent) officer is appointed in respect of all (or any material part) of the business and/or assets of nkoda, or an administration order is made in respect of nkoda or any material part of its business or assets or (d) any meeting of nkoda’s shareholders or creditors is convened to consider or pass a resolution for the winding up, liquidation or dissolution of nkoda, or nkoda ceases to carry on its business (or any material part thereof), other than, in the case of (a), (b), (c) or (d), for the purpose of effecting (or otherwise in relation to) any solvent reconstruction, reorganisation or restructuring of nkoda’s business, or the business of any other member of nkoda’s corporate group (or that group as a whole), which results in, or is intended to result in, another member of nkoda’s corporate group assuming all of nkoda’s rights and obligations under the System Licence Agreement.

12.2 Termination (or suspension of Delivery/Integration Work) by nkoda before the Activation Date: nkoda will have the right to terminate the System Licence Agreement, or (at nkoda’s sole discretion) to suspend the Delivery/Integration Work, in either case with immediate effect, by giving written notice of such termination or suspension to the Licensee:

12.2.1 if the Licensee fails to pay the Licence Fee for Licence Year 1, or any expenses approved by the Licensee pursuant to clause 5.3, within 30 days of the due date for payment thereof, provided that (i) nkoda has given the Licensee at least 14 days prior written notice, requiring such payment to be made and (ii) the payment has not been made by the Licensee within the period specified in nkoda’s written notice;

12.2.2 if nkoda is unable to complete the Delivery/Integration Work by the Latest Activation Date (including any revised Latest Activation Date which the Parties have agreed, or which has otherwise been determined, in accordance with the provisions of clause 3) by reason of any Licensee Default, provided that (i) nkoda has given the Licensee at least 30 days prior written notice, requiring the relevant Licensee Default to be remedied and (ii) the Licensee Default has not been remedied within the period specified in nkoda’s written notice; or        

12.2.3 if the Licensee, or any of its Affiliates, commits (or has committed) a material breach of clause 6, at any time before the Activation Date, provided that (i) nkoda has given the Licensee at least 14 days prior written notice, requiring the material breach to be remedied and (ii) the material breach has not been remedied, to the reasonable satisfaction of nkoda, within the period specified in nkoda’s written notice.

If nkoda suspends the Delivery/Integration Work, pursuant to clause 12.2, such suspension may be subject to any reasonable conditions, and/or other reasonable requirements, as nkoda sets out in its written notice to the Licensee.

12.3 Consequences of termination: if the System Licence Agreement is terminated by the Licensee in accordance with clause 12.1, or by nkoda in accordance with clause 12.2, then in each case:

12.3.1 subject to clause 12.3.2(b), the Licensee will, and will procure that each of the other Licensed Users will, on and from the termination date or, as applicable, from any such later date on which nkoda has complied with its obligation under clause 12.3.2(a), (a) stop accessing, operating or using the System for any of the Permitted Purposes (and any other purpose(s)) (b) uninstall the System from all relevant devices and computer systems owned, controlled or used by the Licensee and each of the other Licensed Users, and (c) promptly either return nkoda’s Confidential Information to nkoda, or destroy the same, in either case as directed in writing by nkoda;

12.3.2 nkoda will (a) at the cost of the Licensee, facilitate a smooth migration of the Licensee’s data to the Licensee, and all Affiliate data to the relevant Affiliate(s), within 90 days of the termination date and (b) promptly either return the Licensee’s Confidential Information to the Licensee, or destroy that Confidential Information, as directed in writing by the Licensee.

12.4 If the System Licence Agreement is validly terminated by the Licensee, in accordance with clause 12.1.1, within 60 days of the date of such termination, nkoda will refund the Licence Fee for Licence Year 1 to the Licensee.

12.5 Any termination of the System Licence Agreement (or, as applicable, any suspension by nkoda of the Delivery/Integration Work), pursuant to this clause 12, will be without prejudice to any other rights or remedies that either Party may be entitled to, under the System Licence Agreement or in law, and will not affect (a) any accrued rights or liabilities of either Party as at the date of such termination (or suspension) or (b) the coming into, or continuance in, force of any provision of the System Licence Agreement which is, whether expressly or by implication, intended to come into, or to continue, in force on or at any time after such termination (or suspension).

13.1 Termination by the Licensee on notice:

13.1.1 During the Initial Licence Period, or any Renewal Period, the Licensee will have the right to terminate its use of the System, and the use of the System by all other Licensed Users, by giving nkoda at least 12 months’ prior written notice of the simultaneous termination of the System Licence Agreement, and all sub-licences the Licensee has granted pursuant to the System Licence Agreement, provided that any such notice (a) can, and will, only take effect at the end of the Initial Licence Period or, as applicable, at the end of the then current Renewal Period and (b) will entitle nkoda to terminate any licence agreement(s) it has entered into with the Licensee’s Third Party Agents pursuant to the System Licence Agreement, with effect from the same date on which the termination of the System Licence Agreement takes effect.

13.1.2 If the Licensee terminates its use of the System in accordance with clause 13.1.1, (a) the Licensee, and all other Licensed Users, will cease to have access to the System on and from the termination date or, as applicable, from such later date on which nkoda has complied with its obligations under clause 13.1.3(b) and (b) the Licensee will, promptly after the termination date, or (as applicable) after such later date on which nkoda has complied with its obligations under clause 13.1.3(b), return nkoda’s Confidential Information to nkoda, or destroy that Confidential Information, as directed in writing by nkoda.

13.1.3 After the termination date, nkoda will (a) within 30 days of the termination date, at the Licensee’s cost, facilitate a smooth migration of the Licensee’s data to the Licensee, and all Affiliate data to the relevant Affiliate(s), or to any replacement developer nominated by the Licensee (b) give the Licensee and the other Licensed Users limited access to the System, for the purpose of fulfilling any hire or rental orders placed with, and any licensing requests submitted to, the Licensee and the other Licensed Users via the System prior to the termination date, and until all such pre-termination hire/rental orders and licensing requests have been fulfilled and (c) promptly either return the Licensee’s Confidential Information to the Licensee, and each Affiliate’s Confidential Information to the relevant Affiliate(s), or destroy all such Confidential Information, as stipulated by the Licensee.

13.2 Termination by the Licensee for fault/material breach:

13.2.1 During the Initial Licence Period or any Renewal Period, the Licensee will also have the right to terminate its use of the System, and the use of the System by all other Licensed Users, with immediate effect, by giving written notice of such termination to nkoda:

(a) if there is a Category D Fault with the System which means the Licensed Users and their Customers cannot use the System to place, process or fulfil hire orders or licensing requests, and the Category D Fault (i) is not an Excluded System Fault (ii) is not the result of, or caused by, any event, situation or circumstances beyond nkoda’s reasonable control and (iii) is not corrected or fixed by nkoda within 30 days of the Category D Fault being reported to nkoda pursuant to paragraph 1.4 of Schedule B; 

(b) if nkoda commits any other material breach of any of its outstanding obligations under the System Licence Agreement, unless the material breach is due to any Licensee Default (in which case, nkoda will promptly give the Licensee written notice of the Licensee Default and how it can be remedied), and provided always that (i) the Licensee has given nkoda at least 30 days prior written notice, requiring the material breach to be remedied and (ii) the material breach has not been remedied by nkoda within the period specified in the Licensee’s written notice; or

(c) if nkoda is unable to pay its debts as they fall due, within the meaning of section 123 of the Insolvency Act 1986, or if (i) nkoda ceases (or threatens to cease) trading all, or any substantial part, of its business (ii) nkoda convenes a formal meeting of its creditors, or any proposal is made for any voluntary arrangement in respect of nkoda, in accordance with Part I of the Insolvency Act 1986, or any proposal is made for any other formal composition, scheme or arrangement with (or formal assignment for the benefit of) nkoda’s creditors generally (iii) any trustee, receiver, administrative receiver or similar (or equivalent) officer is appointed in respect of all (or any material part) of the business and/or assets of nkoda, or an administration order is made in respect of nkoda or any material part of its business or assets or (iv) any meeting of nkoda’s shareholders or creditors is convened to consider or pass any resolution for the winding up, liquidation or dissolution of nkoda, or nkoda ceases to carry on its business (or any material part thereof), other than, in the case of (i), (ii), (iii) or (iv), for the purpose of effecting (or otherwise in connection with) any solvent reconstruction, reorganisation or restructuring of nkoda’s business, or the business of any other member of nkoda’s corporate group (or such group as a whole), which results in, or is intended to result in, another member of nkoda’s corporate group assuming all of nkoda’s outstanding rights and obligations under the System Licence Agreement.

13.2.2 If the Licensee validly terminates its use of the System in accordance with clause 13.1.3:

(a) after the termination date, nkoda will (i) within 30 days of the termination date, at the Licensee’s cost, facilitate a smooth migration of the Licensee’s data to the Licensee, and all Affiliate data to the relevant Affiliate(s), or to any replacement provider nominated by the Licensee (ii) give the Licensee and the other Licensed Users limited access to the System, for up to 30 days from the termination date, for the purpose of fulfilling any hire or rental orders placed with, and any licensing requests submitted to, the Licensed Users via the System prior to the termination date, until all such pre-termination hire/rental orders and licensing requests have been fulfilled and (iii) promptly either return the Licensee’s Confidential Information to the Licensee, and each Affiliate’s Confidential Information to the relevant Affiliate(s), or destroy all such Confidential Information, as stipulated by the Licensee;

(b) the Licensee, and all other Licensed Users, will cease to have access to the System from the termination date or, as applicable, from such later date on which nkoda has complied with clause 13.2.2(a)(ii); and

(c) the Licensee will, promptly after the termination date, either return nkoda’s Confidential Information to nkoda, or destroy that Confidential Information, as directed in writing by nkoda.

13.3 Termination by nkoda

13.3.1 During the Initial Licence Period and any Renewal Period, nkoda will have the right to terminate the use of the System by the Licensee and all other Licensed Users, or (at nkoda’s discretion) suspend the Licensee’s access, and the access of all other Licensed Users, to the System, with immediate effect, by giving written notice of such termination or suspension to the Licensee:

(a) if the Licensee fails to pay any of the System Charges, or any expenses approved by the Licensee pursuant to clause 5.3, within 30 days of the due date for payment thereof, provided that (i) nkoda has given the Licensee at least 14 days prior written notice, requiring such payment to be made and (ii) the payment has not been made within the period specified in nkoda’s written notice;

(b) if the Licensee has committed a material breach of clause 6.1, or if there has been a material failure to comply with any of the restrictions set out in clause 6.1 by any Affiliate of the Licensee, provided that (i) nkoda has given the Licensee at least 14 days prior written notice, requiring the material breach or material failure to be remedied, if it is remediable and (ii) if it is remediable, the material breach or failure has not been remedied, to the satisfaction of nkoda, within the period set out in nkoda’s notice.

13.3.2 If nkoda suspends the Licensee’s access to the System, pursuant to clause 13.3.1, the suspension may be subject to any reasonable conditions and/or other requirements as nkoda sets out in its written notice to the Licensee.

13.3.3 If nkoda terminates the Licensee’s access to the System, in accordance with clause 13.3.1:

(a) the Licensee, and each of its Affiliates, will cease to have access to the System from the termination date or, as applicable, from such later date on which nkoda has complied with clause 13.3.3(b);

(b) after the termination date, nkoda will (i) within 30 days of the termination date, at the Licensee’s cost, facilitate a smooth migration of the Licensee’s data to the Licensee, and all Affiliate data to the relevant Affiliate(s), or to any replacement provider nominated by the Licensee (ii) unless nkoda has terminated the Licensee’s access to the System pursuant to clause 13.3.1(b), give the Licensee and its Affiliates limited access to the System, for up to 30 days from the termination date, for the purpose of fulfilling any hire or rental orders placed with, and any licensing requests submitted to, the Licensed Users via the System prior to the termination date, until all such pre-termination hire/rental orders and licensing requests have been fulfilled and (iii) promptly either return the Licensee’s Confidential Information to the Licensee, and each Affiliate’s Confidential Information to the relevant Affiliate(s), or destroy all such Confidential Information, as stipulated by the Licensee; and

(c) the Licensee will, promptly after the termination date, either return nkoda’s Confidential Information to nkoda, or destroy that Confidential Information, as directed in writing by nkoda.

13.4 Any termination of the System Licence Agreement (or, as applicable, any suspension by nkoda of access to the System) pursuant to this clause 13 will be without prejudice to any other rights or remedies of a Party, under the System Licence Agreement or in law, and will not affect (a) any accrued rights or liabilities of any Party as at the date of such termination or (b) the coming into, or continuation, in force of any provision of the System Licence Agreement which is (expressly or by implication) intended to come into, or continue in, force on or at any time after such termination.

14.1 If either Party believes in good faith that the other Party has breached any provision of the System Licence Agreement, it will notify the other Party in writing setting out in reasonable detail the nature of the alleged breach (a Notice of Breach). If the validity of the Notice of Breach is not disputed by the other Party, the Party in breach will promptly remedy the relevant breach(es). If, however, the other Party disputes the validity of the Notice of Breach, the Parties will comply with the further provisions of this clause 14 to try to resolve such dispute.

14.2 Any dispute to be resolved pursuant to this clause 14 will first be submitted to the chief executive officers (or other officers of comparable authority) of the Parties for attempted resolution. If they are unable to resolve the dispute within 30 days of the date of the Notice of Breach (or any longer period the Parties agree in writing), the Parties will be free to refer the dispute for expert determination pursuant to clause 14.3, or for mediation pursuant to clause 14.4, or otherwise to pursue whatever remedies, at law or in equity, are available to each of them in respect of the dispute. Neither Party will refer any dispute for resolution pursuant to clause 14.3 or 14.4 unless the Parties have first tried to resolve the dispute themselves in accordance with the provisions of this clause 14.2.

14.3 Expert determination: if any dispute of a technical nature arises in connection with the System Licence Agreement, that dispute may be referred by the Parties to an expert for a final determination of the subject matter of the dispute (the Expert), who will be deemed to be acting as an expert, and not as an arbitrator. In any such case (a) the Expert will be selected by mutual agreement between the Parties and will be engaged jointly by the Parties (b) the Expert will be instructed to deliver a written determination of the dispute to each of the Parties within fourteen (14) days of being appointed (or within such longer period as is agreed by both Parties in writing) (c) the written determination of the Expert will be final and binding on both of the Parties (and not subject to any appeal or other review) except in the case of fraud or manifest error (d) the Expert will have the same powers as an arbitrator to require either Party to produce any documents or information, to the Expert and/or to the other Party, and each Party will in any event provide to the Expert any such information which it has in its possession and which, acting reasonably and in good faith, it considers to be material to the dispute and (e) the fees and costs of the Expert will be paid by the Parties in equal shares, and each Party will bear its own costs in relation to consulting the Expert. If the Parties are unable to agree on the identity of the Expert, within 30 days of the dispute being referred for determination pursuant to this clause 14.3, each Party will then, within a further 14 days, be entitled to request BCS, The Chartered Institute for IT (www.bcs.org) to appoint an Expert of repute, with experience in the software development industry, to determine the dispute pursuant to this clause 14.3, in which case the requesting Party will send a copy of that request to the other Party (but if no such request is made by either Party, within that further 14 day period, any expert determination of the relevant dispute in accordance with this clause 14.3 can only then continue with the prior written agreement of both Parties).

14.4 Mediation: if any dispute arises in connection with the System Licence Agreement that is not of a technical nature, before resorting to any legal proceedings, if the Parties are unable to resolve the dispute under clause 14.2, they agree to enter into good faith mediation to settle the dispute pursuant to the model mediation procedure of the Centre for Effective Dispute Resolution (CEDR). For the purposes of such mediation (a) the Parties will jointly appoint a mediator from CEDR, and the mediation will take place in London (or in such other place as both Parties agree in writing) (b) both Parties agree to cooperate fully with the appointed mediator and to provide such assistance as is reasonably necessary to enable the mediator to discharge their duties and (c) the fees and costs of the mediator will be paid by the Parties in equal shares, and each Party will bear its own costs in relation to consulting the mediator. If the Parties are unable to agree on the identity of the mediator within 30 days of agreeing to enter into mediation, either Party will then, within a further 14 days, be entitled to request CEDR to appoint a suitably experienced mediator, with experience of the software development industry, to mediate the dispute in accordance with this clause 14.4, in which case the requesting Party will send a copy of that request to the other Party (but if no such request is made by either Party, within that further 14 day period, any mediation of the relevant dispute in accordance with this clause 14.4 can only then continue with the prior written agreement of both Parties, and if mediation is otherwise unable to finally resolve the dispute, each Party will be free to pursue whatever remedies are available to it in respect of the dispute).

15.1 Any notice to be given under the System Licence Agreement must be in writing and sent by e-mail to the Party required to receive the notice, with a physical copy of the notice also delivered personally, or sent by pre-paid first-class post, recorded delivery or commercial courier, to the Party required to receive the notice, at its address as set out at the start of the System Licence Agreement (or to such other address as is specified by that Party, from time to time, by written notice to the other Party given pursuant to this clause 15.1), marked for the attention of the relevant Party’s representative named in the System Licence Agreement. For the purpose of this clause 15.1, the email addresses of the named representatives of the Parties are those set out in Section 3 of the System Licence Agreement (or such other e-mail address(es) as are specified by the relevant Party by notice in writing given to the other Party pursuant to this clause 15.1). But this clause 15 will not apply to the service of any document(s) in any legal or arbitration proceedings.

15.2 Subject to clause 15.3, any notice given by a Party, pursuant to clause 15.1, will be deemed to have been duly received by the other Party, and effective, on the earliest to occur of (a) if the notice is sent by e-mail to the correct e-mail address(es) of the receiving Party’s representative(s), as referred to in clause 15.1, the successful transmission of the e-mail (b) if the notice is delivered personally, and is marked for the attention of the relevant Party’s representative (as named in the System Licence Agreement), when it is left at the address for that Party set out in the System Licence Agreement (c) if the notice is sent by pre-paid first-class post or recorded delivery to the address of the relevant Party set out in the System Licence Agreement, marked for the attention of the relevant Party’s representative(s) named in the System Licence Agreement, at 9.00 am on the fifth (5th) Business Day after the date of posting or (d) if the notice is delivered by commercial courier to the address of the relevant Party set out in the System Licence Agreement, and is marked for the attention of the relevant Party’s representative(s) named in the System Licence Agreement, on the date and at the time that the courier's delivery receipt is signed by (or on behalf of) the relevant Party.

15.3 If the date for deemed receipt of a notice under clause 15.2 is between 22 December and 2 January (inclusive) in any year, the notice will be deemed to have been duly received on the next Business Day after 2 January.

16.1 Non-solicitation of employees: each Party undertakes to the other Party that, during the Initial Licence Period and any Renewal Period(s), and for at least twelve (12) months following the expiry or termination of the System Licence Agreement, it will not directly or indirectly (for itself or for the benefit of any other person) induce, or endeavour to induce, any officer or employee of the other Party, who has been involved in any aspect of the activities covered by the System Licence Agreement, to leave his or her employment with that other Party.

16.2 Force majeure: neither Party will be in breach of the System Licence Agreement, nor liable for any delay in performing (or for any failure to perform) any of their respective obligations under the System Licence Agreement, if any such delay or failure results from any circumstances beyond that Party’s reasonable control. In any such circumstances, the affected Party will be entitled to a reasonable extension of the time allowed for performing the relevant obligations provided always that, if the period of delay or non-performance continues for any longer than 60 days, the other Party may terminate the System Licence Agreement, with immediate effect, by giving written notice to the affected Party.

16.3 Further assurance: each Party will (and will use all reasonable endeavours to procure that any relevant third party will) promptly execute all such other documents, and perform all such other acts, as may be reasonably required by the other Party for the purpose of giving full effect to the provisions of the System Licence Agreement.

16.4 Waiver: the waiver by a Party of any breach of the System Licence Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same (or any other) provision of the System Licence Agreement, nor will any delay or omission by a Party to exercise or enforce any right, power or remedy it has (or may have) under the System Licence Agreement operate as a waiver of any breach of the System Licence Agreement by the other Party.

16.5 Invalidity; severability: if any provision of the System Licence Agreement is found, by any court or other body of competent jurisdiction, to be invalid or unenforceable, that will not affect the other provisions of the System Licence Agreement, and the provisions of the System Licence Agreement not affected by such invalidity or unenforceability will remain in full force and effect. In those circumstances, the Parties also agree to attempt (in good faith) to substitute, for any such invalid or unenforceable provision, a valid and enforceable provision which achieves, to the greatest extent possible, the economic, legal and commercial objectives of the invalid or unenforceable provision.

16.6 Entire agreement: the System Licence Agreement constitutes the entire agreement between the Parties, relating to the grant of the licence by nkoda to enable the Licensee (and the other Licensed Users) to use the System for the Permitted Purposes, and supersedes and extinguishes all previous agreements, arrangements or understandings between the Parties relating to that licence (or any related matter or activity). Neither Party will be liable to the other Party for any loss or damage arising from, or in connection with, any representation, warranty or undertaking made prior to the date of the System Licence Agreement, other than those contained in the System Licence Agreement.

16.7 Assignment; successors: neither Party will be entitled to assign the benefit of the System Licence Agreement, or any of its rights thereunder, without the prior written consent of the other Party. The System Licence Agreement will be binding on, and will operate for the benefit of, the successors-in-title of the respective Parties and their permitted assignees.

16.8 Third party rights: the Contracts (Rights of Third Parties) Act 1999 will not apply to the System Licence Agreement, and no rights or benefits conferred by the System Licence Agreement are enforceable under that Act by any person who is not a Party. The rights of the Parties to terminate or rescind, or to agree any variation, waiver or settlement under, the System Licence Agreement are not subject to the consent of any person who is not a Party.

16.9 Costs and expenses: except as expressly stated herein, each Party will bear its own costs and expenses in relation to the preparation, review, negotiation, execution, implementation and performance of the System Licence Agreement.

16.10 Variation: no variation of the System Licence Agreement is effective unless it is in writing and signed by both Parties.

16.11 No partnership: nothing in this System Licence Agreement is intended, or will be deemed, to (a) establish any partnership between the Parties (b) appoint or constitute a Party as the agent of the other Party or (c) authorise a Party to make or enter into any commitment(s) for, or on behalf of, the other Party. Each Party confirms that, in entering into the System Licence Agreement, it is acting on its own behalf and not for the benefit of any other person or company.

16.12 Counterparts: this System Licence Agreement can be executed by the Parties in separate counterparts (including by electronic or digital execution, or by scanned copies exchanged by email), each of which when executed and delivered will constitute an original of the System Licence Agreement, but all of the counterparts will together constitute one agreement. No such counterpart will be effective until both Parties have executed at least one such counterpart.

16.13 Governing law and jurisdiction: this System Licence Agreement, and any dispute or claim arising in connection with it, or its subject matter or formation, will be governed by, and construed in accordance with, the laws of England. The Parties irrevocably agree that the courts of England will have exclusive jurisdiction to settle any dispute or claim arising in connection with the System Licence Agreement.

17.1 Definitions

In this Schedule A, the following expressions have the meanings set out in this paragraph 17.1:
applicable law: the laws, statutes, regulations, byelaws and subordinate legislation of the United Kingdom (or any part of the United Kingdom) and the common law and laws of equity that are in force in the United Kingdom from time to time in force;
Commissioner: the Information Commissioner as referred to in Article 4(A3) UK GDPR/s114 DPA 2018;
Controller: has the meaning given in the UK GDPR and the DPA 2018;
Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including (a) the UK GDPR (b) the Data Protection Act 2018 (the DPA 2018) (c) any laws implementing or supplementing any such laws from time to time (d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing laws, in each case as they are from time to time in force and (e) the guidance and codes of practice issued by the Commissioner and which are applicable to nkoda from time to time;
Data Subject: any identified or identifiable living individual to whom any Protected Data relates;
Data Subject Request: any request by a Data Subject to exercise any rights of data subjects under Chapter III of the UK GDPR in relation to any Protected Data;
International Organisation: has the meaning given to it in the Data Protection Laws;
Personal Data: has the meaning given to it in the Data Protection Laws;
Personal Data Breach: any breach of security involving nkoda, or any Sub-Processor, leading to the accidental, unauthorised or unlawful destruction, loss, alteration or disclosure of Protected Data;
processing: has the meaning given in the Data Protection Laws (and related expressions, including process, processed and processes, will be construed accordingly);
Processor: has the meaning given to it in the Data Protection Laws;
Protected Data: in relation to the Licensee and (as applicable) any Group Sub-Licensee, (a) any Personal Data received by nkoda and/or any Sub-Processor from the Licensee, or any Group Sub-Licensee, in connection with the performance of any of nkoda’s obligations under the System Licence Agreement (b) any Personal Data entered into the System by that Licensee or any Group Sub-Licensee (or anyone authorised to use the System on behalf of that Licensee or any Group Sub-Licensee) after the Activation Date and (c) any Personal Data entered into the System by any of their respective Customers (or anyone  authorised to use the System on behalf of any such Customer) after the Activation Date;
any Processor engaged by nkoda (or another Sub-Processor) for the purpose of carrying out any processing activities, in respect of Protected Data, on behalf of nkoda
Sub-Processor: any Processor engaged by nkoda (or another Sub-Processor) for the purpose of carrying out any processing activities, in respect of Protected Data, on behalf of nkoda; and
UK GDPR: has the meaning given in s3(10) (as supplemented by s205(4)) of the DPA 2018.

17.2 Compliance with Data Protection Laws

17.2.1 The Parties agree that, for the purposes of this System Licence Agreement (a) the Licensee, and any Group Sub-Licensee, is an independent Controller in respect of the Protected Data it provides to nkoda (and/or to any Sub-Processor) from time to time pursuant to this System Licence Agreement and/or any sub-licence granted to the relevant Group Sub-Licensee in accordance with this System Licence Agreement and (b) nkoda is a Processor for the purpose of processing the Protected Data it receives (and that any Sub-Processor receives) from the Licensee, and from any Group Sub-Licensee(s), from time to time pursuant to this System Licence Agreement and/or any sub-licence(s) granted to the relevant Group Sub-Licensee(s) pursuant to clause 4.1.2 of this System Licence Agreement.

17.2.2 The Licensee will at all times (a) remain responsible for its compliance obligations under the Data Protection Laws in connection with the Protected Data in respect of which it is an independent Controller, and (b) ensure that all instructions given by it to nkoda (and to any Sub-Processor) in respect of that Protected Data, including the provisions of this System Licence Agreement, are in accordance with the Data Protection Laws.

17.2.3 The Licensee will procure that (a) any Group Sub-Licensee complies with the Data Protection Laws in connection with the Protected Data in respect of which that Group Sub-Licensee is an independent Controller and (b) all instructions given by any Group Sub-Licensee(s) to nkoda (and to any Sub-Processor), in respect of that Protected Data, are in accordance with the Data Protection Laws.

17.2.4 Without prejudice to the generality of paragraphs 17.2.2 and 17.2.3 of this Schedule A, the Licensee undertakes to nkoda that:

(a) in relation to the Protected Data in respect of which it is an independent Controller, (i) all fair processing and other appropriate notices have been provided by the Licensee to the relevant Data Subjects, and all necessary consents from such Data Subjects have been obtained and maintained by the Licensee, to the extent required by the Data Protection Laws, in each case in connection with the processing of that Protected Data which will or may be undertaken by nkoda (and/or any Sub-Processor(s)) pursuant to this System Licence Agreement and/or any sub-licence(s) granted to any Group Sub-Licensee(s) under this System Licence Agreement (ii) it has used reasonable endeavours to ensure the Protected Data is accurate and up-to-date and (iii) if any such Protected Data is subject to the laws of a jurisdiction outside the United Kingdom, all relevant Data Subjects have consented (in accordance with the laws of the relevant jurisdiction) to, or there will otherwise be a lawful basis for, the processing of such Protected Data by nkoda and its Sub-Processors pursuant to this System Licence Agreement and/or any sub-licence(s) granted to any Group Sub-Licensee(s) under this System Licence Agreement; and

(b) in relation to the Protected Data in respect of which any Group Sub-Licensee is an independent Controller, (i) all fair processing and other appropriate notices have been provided by that Group Sub-Licensee to the relevant Data Subjects, all necessary consents from such Data Subjects have been obtained and maintained by that Group Sub-Licensee, to the extent required by the Data Protection Laws, and in each case in connection with the processing of that Protected Data which will or may be undertaken by nkoda (and/or any Sub-Processor(s)) in accordance with this System Licence Agreement and/or the sub-licence granted to the relevant Group Sub-Licensee under this System Licence Agreement (ii) each Group Sub-Licensee will have used reasonable endeavours to ensure that the Protected Data is accurate and up-to-date and (iii) if any such Protected Data is subject to the laws of a jurisdiction outside the United Kingdom, all of the relevant Data Subjects have consented (in accordance with the laws of the relevant jurisdiction) to, or there will otherwise be a lawful basis for, the processing of such Protected Data by nkoda, and its Sub-Processors, pursuant to this System Licence Agreement and/or any sub-licence granted to the relevant Group Sub-Licensee under this System Licence Agreement.

17.2.5 nkoda will process the Protected Data in compliance with the obligations placed on it, as a Processor, under (a) the Data Protection Laws (b) the provisions of this System Licence Agreement and (c) the EULA it enters into with Customers.

17.2.6 nkoda will use reasonable endeavours to ensure all persons authorised to process the Protected Data (a) are informed of the confidential nature of the Protected Data and bound by written confidentiality obligations and use restrictions in respect of the Protected Data (b) have undertaken training on the Data Protection Laws, how the Data Protection Laws relate to their handling of the Protected Data, and how the Data Protection Laws apply to their particular duties and (c) are aware of nkoda’s obligations under the Data Protection Laws and this System Licence Agreement.

17.2.7 Nothing in this System Licence Agreement, or in any sub-licence(s) granted to any Group Sub-Licensee(s) under this System Licence Agreement, relieves either of the Parties, or any such Group Sub-Licensee(s), of any of their respective responsibilities or liabilities under any of the Data Protection Laws.

17.2.8 Neither Party will withhold, delay or condition their agreement to any change to the System requested by the other Party if such change to the System is necessary to ensure that nkoda (and/or any Sub-Processor) can comply with the Data Protection Laws in relation to the processing of Protected Data pursuant to this System Licence Agreement.

17.3 Instructions

17.3.1 nkoda will process Protected Data pursuant to the documented processing instructions of the Licensee, as set out in this Schedule A, and the other provisions of this System Licence Agreement (including with regard to any transfer to which paragraph 17.7 of this Schedule A relates) except to the extent:

(a) that alternative processing instructions are agreed and documented between (i) the Parties in writing in respect of the Protected Data generally (ii) the Parties in relation to the Protected Data in respect of which the Licensee is an independent Controller or (iii) nkoda and any Group Sub-Licensee in relation to the Protected Data in respect of which that Group Sub-Licensee is an independent Controller; or

(b) otherwise required by applicable law (in which case, nkoda will inform the Licensee of that legal requirement before processing the relevant Protected Data, unless applicable law prevents nkoda from doing so on important grounds of public interest).

17.3.2 Without prejudice to paragraph 17.3.1, if nkoda reasonably believes that any instruction it (and/or any Sub-Processor) receives from the Licensee, or any Group Sub-Licensee(s), will (or is likely to) infringe any of the Data Protection Laws, nkoda will (a) promptly inform the Licensee or the relevant Group Sub-Licensee(s) (as the case may be) and (b) be entitled to delay its performance of any obligation pursuant to this System Licence Agreement, and/or under any sub-licence(s) granted to the relevant Group Sub-Licensee(s) under this System Licence Agreement, until the Licensee and nkoda (and, if applicable, any Sub-Processor(s)) have agreed appropriate amended instructions that they reasonably believe will not infringe the Data Protection Laws. No System Charges will be withheld, delayed, discounted, reduced or set-off by the Licensee as a result of any delay by nkoda in performing, or any non-performance by nkoda of, any obligation under this System Licence Agreement, or any sub-licence(s) granted to any Group Sub-Licensee(s) under this System Licence Agreement, if such delay or non-performance is in accordance with this paragraph 17.3.2.

17.3.3 The Licensee acknowledges and agrees that (a) the execution of any computer command to process any Protected Data within the System (including to delete any such Protected Data from the System), which is made by or on behalf of the Licensee or any Group Sub-Licensee(s), will be a documented processing instruction for the purposes of paragraph 17.3.1 (other than to the extent such command is not fulfilled or executed due to any technical, operational or other reason(s)) and (b) if any Protected Data is deleted from the System by or on behalf of the Licensee or any Group Sub-Licensee(s), pursuant to any such command, nkoda will be under no obligation to try to restore that Protected Data (except to the extent it is available to nkoda as a result of any back-up of the Protected Data on the System).

17.3.4 Subject to paragraph 17.3.2 (and without prejudice to paragraph 17.3.1), nkoda will promptly comply with any written instructions of the Licensee or any Group Sub-Licensee requiring nkoda to amend, transfer, delete or otherwise process any Protected Data in respect of which the Licensee, or the relevant Group Sub-Licensee, is an independent Controller.

17.4 Security

17.4.1 nkoda will implement and maintain the technical and organisational measures set out in clause 17.11 of this Schedule A, in relation to the processing of Protected Data under this System Licence Agreement, and/or any sub-licence granted to any Group Sub-Licensee(s) under this System Licence Agreement, to protect against any Personal Data Breach.

17.4.2 nkoda will notify the Licensee, without undue delay and in writing, after becoming aware of any Personal Data Breach affecting any of the Protected Data in respect of which the Licensee or any relevant Group Sub-Licensee(s) (the Affected Group Sub-Licensee(s)) are independent Controllers, and provide the Licensee and the Affected Group Sub-Licensee(s) with reasonable details of any such Personal Data Breach, including (a) a description of the Personal Data Breach (including the categories of Protected Data, approximate number of Data Subjects and Protected Data records concerned) (b) nkoda’s reasonable assessment of the likely consequences of the Personal Data Breach and (c) a description of the measures taken, or proposed to be taken, by nkoda and its Sub-Processors, to address the Personal Data Breach and mitigate its possible adverse effects.

17.4.3 As soon as practicable following any Personal Data Breach notified by nkoda pursuant to paragraph 17.4.2, (a) nkoda, the Licensee and any Affected Group Sub-Licensee(s) will co-ordinate with each other to investigate the Personal Data Breach and (b) nkoda will, acting reasonably and in good faith, co-operate with the Licensee and any Affected Group Sub-Licensee(s), at no additional cost to the Licensee (or any Affected Group Sub-Licensee(s)), in the handling of the Personal Data Breach by the Licensee and any Affected Group Sub-Licensee(s).

17.4.4 nkoda will not inform, and will use reasonable endeavours to ensure that no Sub-Processor informs, any third party of any Personal Data Breach without first obtaining the written consent of the Licensee and any Affected Group Sub-Licensee(s), except when required to do so by applicable law.

17.4.5 nkoda agrees that the Licensee, and any Affected Group Sub-Licensee(s), will have the right to determine (a) whether to provide notice of the Personal Data Breach to any Data Subjects, the Commissioner, law enforcement agencies or others, as required by applicable law or at the discretion of the Licensee and any Affected Group Sub-Licensee(s), including the contents and delivery method of the notice and (b) whether to offer any type of remedy to Data Subjects affected by the Personal Data Breach, including the nature and extent of such remedy. 

17.4.6 nkoda will, promptly on request, pay all reasonable expenses properly incurred by the Licensee in the performance of its obligations under paragraph 17.4.3, unless the Personal Data Breach arose from (a) the specific written instructions, negligence or wilful default of the Licensee or any Affected Group Sub-Licensee(s) or (b) a breach of the System Licence Agreement by the Licensee and/or any breach of any sub-licence granted to any Affected Group Sub-Licensee(s) pursuant to this System Licence Agreement, in which case(s) the Licensee will, promptly on request by nkoda, pay all reasonable expenses properly incurred by nkoda in the performance of its obligations under paragraph 17.4.3.

17.4.7 nkoda will also reimburse the Licensee, promptly on request, for any actual reasonable expenses that the Licensee has properly incurred when responding to a Personal Data Breach, to the extent that nkoda or any Sub-Processor caused such Personal Data Breach, unless the Personal Data Breach arose from any matter or event that is described or referred to in sub-paragraph 17.4.6(a) or 17.4.6(b).

17.4.8 The Licensee will take and retain, and will procure that each Group Sub-Licensee takes and retains, at least one (1) complete and accurate copy of the Protected Data in respect of which it is an independent Controller and which it provides to nkoda (and/or to any Sub-Processor) for the purposes of the System Licence Agreement and/or any sub-licence granted to the relevant Group Sub-Licensee under the System Licence Agreement.

17.4.9 For the avoidance of doubt, neither the Licensee nor any Group Sub-Licensee(s) will be under any obligation to take or retain copies of any Personal Data which may be entered onto the System by any Customers or their authorised users.

17.5 Sub-Processing

17.5.1 nkoda will (a) not permit any processing of any Protected Data by any Sub-Processor without the prior and specific written authorisation of the Licensee, or (as applicable) the Group Sub-Licensee, who is the independent Controller of that Protected Data (b) prior to any Sub-Processor carrying out any processing activities in respect of any Protected Data, ensure that such Sub-Processor is appointed under a binding written contract containing materially the same obligations as under this Schedule A (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) and that the Sub-Processor complies with all such obligations, and (c) be liable to the Licensee, under this System Licence Agreement, for the acts and omissions of each Sub-Processor as if they are the acts and omissions of nkoda itself.

17.5.2 For the purpose of paragraph 17.5.1, on the date of the System Licence Agreement, the Licensee (on behalf of itself and any Group Sub-Licensee(s)) expressly authorises the appointment by nkoda of the Sub-Processor named below, to process the Protected Data in respect of which the Licensee, or any Group Sub-Licensee, is an independent Controller, in each case in connection with the performance by nkoda of its obligations under the System Licence Agreement or any sub-licence(s) granted to the relevant Group Sub-Licensee(s) under the System Licence Agreement:
Sub-Processor authorised by Licensee: Microsoft Limited (Company Number: 01624297), Microsoft Campus, Thames Valley Park, Reading, Berkshire, RG6 1WG, United Kingdom.
Processing the Sub-Processor is authorised to undertake: hosting of the nkoda servers on which the System will be operated and on which the relevant Protected Data will be stored and processed.

17.5.3 The Licensee will promptly (and, in any event, within 10 Business Days) reply to any communication from nkoda requesting any further specific, written authorisation of a Sub-Processor for the purposes of paragraph 17.5.1. The Licensee will not withhold, delay or condition any such authorisation provided that (a) the transfer of Protected Data to the proposed Sub-Processor and (b) the processing of that Protected Data by the proposed Sub-Processor will (in each case) be conducted in compliance with the Data Protection Laws.

17.6 Assistance

17.6.1 nkoda will, without undue delay, at the cost and expense of the Licensee, refer to the Licensee any Data Subject Request relating to any Protected Data in respect of which the Licensee, or any Group Sub-Licensee, is an independent Controller (but it will remain the responsibility of the Licensee, or the relevant Group Sub-Licensee, to reply to any such request, as required by applicable law).

17.6.2 nkoda will, insofar as it is possible, taking into account the nature of the processing of the Protected Data by nkoda and any Sub-Processors, and the information available to nkoda in relation to that processing, assist the Licensee and any Group Sub-Licensee(s) in complying with their respective obligations (a) under Articles 32 to 36 of the UK GDPR and (b) to respond to any Data Subject Request relating to any Protected Data in respect of which that Licensee and/or any Group Sub-Licensee is an independent Controller (but it will remain the responsibility of the Licensee, and/or any such Group Sub-Licensee, to reply to any such request, as required by applicable law).

17.6.3 If either Party receives (or any Group Company of a Party receives) a compensation claim from any person relating to the processing of any Protected Data, pursuant to the System Licence Agreement and/or any sub-licence(s) granted to any Group Sub-Licensee(s) in accordance with the System Licence Agreement, that Party will promptly provide the other Party with notice, and full details, of the compensation claim.

17.7 International Transfers

17.7.1 nkoda will not process or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Licensee (for itself and for any Group Sub-Licensee(s)), except where required by applicable law (in which case the provisions of paragraph 17.5.1 will apply).

17.7.2 For the purposes of paragraph 17.7.1, the Licensee (for itself and any Group Sub-Licensee(s)) hereby specifically authorises the following international transfer of the Protected Data by nkoda:
Transfer description: Protected Data may be held on servers that are located outside of the United Kingdom.
Entity receiving the Protected Data: Microsoft Limited (Company Number: 01624297), Microsoft Campus, Thames Valley Park, Reading, Berkshire, RG6 1WG, United Kingdom.

17.7.3 The Licensee, for itself and for any Group Sub-Licensee(s), acknowledges that (a) due to the nature of cloud services, Protected Data may be transferred to other geographical locations in connection with the use of the System, including as a result of access and/or computerised instructions initiated by the Licensee, any Group Sub-Licensee(s) and/or any Customer, and (b) nkoda does not (and cannot) control such processing.

17.7.4 nkoda will ensure that, in relation to any transfer of Protected Data outside of the European Economic Area (EEA), nkoda complies (and that its Sub-Processors comply) with the cross-border requirements of the Data Protection Laws, including providing appropriate safeguards as required by Article 46, UK GDPR and on condition that enforceable data subject rights, and effective legal remedies for data subjects, are available in the relevant jurisdiction(s).

17.8 Audits/Inspections

17.8.1 nkoda will, in accordance with Data Protection Laws, make available to the Licensee, as soon as reasonably practicable following receipt of a written request from the Licensee, such information in nkoda’s possession or control that is reasonably necessary to demonstrate (a) nkoda’s compliance with its obligations to the Licensee under this Part A and (b) compliance with the obligations imposed on nkoda (as a Processor of the Personal Data) by Article 28, UK GDPR.

17.8.2 Subject to paragraph 17.8.3, nkoda will allow, and will promptly on request contribute to, any reasonable audits or inspections proposed to be conducted by the Licensee or any Group Sub-Licensee(s), or by any third party auditor or inspector appointed by the Licensee or any Group Sub-Licensee(s), in each case at the cost of the Licensee or the relevant Group Sub-Licensee(s), for the purpose of verifying that nkoda has in its possession or control the information referred to in paragraph 17.8.1, provided that the Licensee will, and will ensure that each Group Sub-Licensee will:

(a) give nkoda at least 40 Business Days prior written notice of any such audit or inspection, and limit such audit or inspection to information in nkoda’s possession and control; 

(b) conduct a maximum of one such audit or inspection during each Licence Year (which, for the avoidance of doubt, means that (i) if the Licensee conducts such an audit or inspection during any Licence Year, no Group Sub-Licensee will be entitled to conduct any such audit or inspection during the remainder of that Licence Year and (ii) if any Group Sub-Licensee conducts such an audit or inspection during any Licence Year, the Licensee will not be entitled to conduct any such audit or inspection during the remainder of that Licence Year);

(c) agree with nkoda in advance (i) the timing and duration of the audit or inspection and (ii) any specific policies or other steps with which the Licensee, or (as applicable) the relevant Group Sub-Licensee(s), or any third party auditor or inspector, will need to comply (including to protect the security and confidentiality of the data owned or controlled by any other licensee, and/or sub-licensee, of the System and/or, as applicable, by any other user(s) of the System, in each case so as to ensure that nkoda is not in breach of any agreement, contract or other arrangement with any such other licensee, sub-licensee or other user of the System);

(d) treat as nkoda’s Confidential Information, for the purposes of clause 11, all information nkoda provides to (or that is otherwise obtained by) the Licensee or any Group Sub-Licensee(s), and any auditor or inspector appointed by the Licensee or any such Group Sub-Licensee(s), in connection with any such audit or inspection;

(e) procure that any third party auditor or inspector complies with paragraph 17.8.2(d) in respect of any information such auditor or inspector receives or obtains from nkoda in relation to any such audit or inspection;

(f) ensure that (i) any such audit or inspection is undertaken during nkoda’s normal business hours and with minimal disruption to nkoda’s business and (ii) each person acting on behalf of the Licensee or any Group Sub-Licensee(s) in connection with such audit or inspection (including the personnel of any third party auditor or inspector) will not, while conducting any such audit or inspection, cause or contribute to any damage, destruction, loss or corruption of or to any system or software (including the System), or equipment or data (including the Protected Data), in the possession or control of nkoda at the time of the audit or inspection; and 

(g) promptly report to nkoda any non-compliance that is identified by the audit or inspection.

17.8.3 nkoda will be entitled to withhold or exclude, from the scope of any audit or inspection conducted by the Licensee or any Group Sub-Licensee(s), pursuant to paragraph 17.8.2, any information that nkoda reasonably considers to be confidential, commercially-sensitive and/or a trade secret.

17.9 Deletion/Return

17.9.1 At the end of the processing by nkoda and its Sub-Processors of the Protected Data in respect of which the Licensee and/or any Group Sub-Licensee is an independent Controller (the “Processing End Date”), at the option of the Licensee or the relevant Group Sub-Licensee(s), and at the cost and expense of the Licensee or (as applicable) the relevant Group Sub-Licensee(s), nkoda will either (a) return to the Licensee, or the relevant Group Sub-Licensee, all the Protected Data in respect of which the Licensee, or the relevant Group Sub-Licensee, is an independent Controller or (b) securely dispose of that Protected Data and also promptly delete all existing copies of it (except if any applicable law requires nkoda and/or any Sub-Processors to retain and store any such Protected Data, in which case nkoda will inform the Licensee, and/or the relevant Group Sub-Licensee(s), of any such requirement and will, and will ensure any relevant Sub-Processor will, promptly and securely delete such Protected Data once such deletion is legally permitted).

17.9.2 If the Licensee, or (as applicable) any relevant Group Sub-Licensee, has not notified nkoda in writing, within 30 days of the Processing End Date, that it requires the return of any of the relevant Protected Data, nkoda and any Sub-Processors are hereby irrevocably authorised to securely dispose of that Protected Data.

17.9.3 Promptly on receiving a written request from the Licensee, or (as applicable) from any relevant Group Sub-Licensee, nkoda will confirm in writing to that Licensee, or (as applicable) to any relevant Group Sub-Licensee, whether or not it has complied with its obligation to securely dispose of the relevant Protected Data pursuant to this paragraph 17.9.

17.9.4 nkoda will have no liability for any deletion/destruction of Protected Data undertaken pursuant to this paragraph 17.9.

17.9.5 As between nkoda and the Licensee, this paragraph 17.9 will survive indefinitely. All other provisions of this Schedule A will survive until the later of (a) the termination or expiry of the System Licence Agreement or (b) pursuant to this paragraph 17.9, the return to the Licensee or (as applicable) any relevant Group Sub-Licensee, or the secure deletion or disposal by nkoda, of the last of the Protected Data in nkoda’s (and/or any Sub-Processor’s) possession or control.

17.10 Data Processing Details

The processing of the Protected Data by nkoda under the System Licence Agreement, and under any sub-licence(s) granted to any Group Sub-Licensee(s) pursuant to the System Licence Agreement, will be for the subject-matter, duration, nature and purposes, and will involve the types of Personal Data and the categories of Data Subjects, set out in this paragraph 17.10.

17.10.1  Subject matter of the processing: a centralised music hire library management system, to be designed, developed, operated and supported by nkoda, in order to enable (a) Customers to place hire orders with, and request licences from, Licensed Users and (b) Licensed Users to fulfil hire orders received from, and grant licences to, Customers.

17.10.2  Duration of the processing: in respect of (a) each Licensee, until the expiry or earlier termination of the System Licence Agreement (b) any Group Sub-Licensee(s), until the expiry or earlier termination of, as applicable the sub-licence pursuant to which that Group Sub-Licensee has the right to use the System, and the System Licence Agreement and (c) each Third Party Agent, until the expiry or earlier termination of the System Licence Agreement or the agreement such Third Party Agent has entered into with nkoda to use the System.

17.10.3  Nature and purpose of the processing:

(a) In the Front-End Application, the Protected Data will be processed to allow any Customer to place and pay for a hire or rental order, and/or to request, negotiate, execute and pay for a licence, in each case with a Licensed User, in order for the Customer to perform a musical composition, the relevant rights in which are owned or controlled by that Licensed User.

(b) In the Back-End Application, the Protected Data will be processed to allow any Licensed User to manage (i) the fulfilment of any hire or rental order, or licence request, received from a Customer via the Front-End Application and (ii) the production and issue of any contract(s) relating to that Customer order or request.

17.10.4  Types of Personal Data:

(a) In respect of the officers, employees, workers, contractors, sub-contractors, agents, representatives and other personnel of the Licensed Users who are authorised by those Licensed Users to use the System, any or all of the following: (i) forename and surname (ii) e-mail address (iii) postal/business address (iv) telephone number (v) mobile phone number (vi) Internet Protocol (IP) address and (vii) cookie ID(s).

(b) In respect of the individuals (i.e. natural persons) who use the System as Customers, and the officers, employees, workers, contractors, sub-contractors, agents, representatives and other personnel of business/institutional Customers who are authorised by those business/institutional Customers to use the System, any or all of the following: (i) forename and surname (ii) e-mail address (iii) postal/business address (iv) telephone number (v) mobile phone number (vi) Internet Protocol (IP) address and (vii) cookie ID(s).

17.10.5  Categories of Data Subjects:

(a) The officers, employees, workers, contractors, sub-contractors, agents, representatives and other personnel of the Licensed Users who are authorised by those Licensed Users to use the System from time to time.

(b) The individuals (i.e. natural persons) who use the System as Customers.

(c) The officers, employees, workers, contractors, sub-contractors, agents, representatives and other personnel of business/institutional Customers authorised by those business/institutional Customers to use the System.

17.11 Minimum Technical/Organisational Security Measures

nkoda will implement and maintain the following technical and security measures in order to protect the Protected Data:

17.11.1 Basic Principles: (a) all data will be transported in an encrypted form (b) the identity of all System users will be verified (c) user authorisation will take place on the basis of function separation and least privilege (d) safe session management will be applied (d) based on context, scope and security risks, data entry and output will be normalised, validated and restricted (e) configuration leaks will be prevented (f) the System will offer sufficient possibilities for auditing and logging and (g) continuous maintenance and patch management will take place.

17.11.2 Platform Security: authentication across the System will be managed by a centralised token based identity management service hosted in the UK. This will also support third-party OAuth tokens to enable single sign on (SSO). Depending on the nature of the data and the relevant use cases, multi-factor authentication can also be implemented. The key advantages of token-based authentication are that (a) it enables cross-domain/CORS, (b) it is stateless, (c) it enables Microsoft Azure’s Content Delivery Network (CDN) (d) it allows decoupling (e) it is mobile ready and (f) it protects against Cross-Site Request Forgery (CSRF).

17.11.3 Infrastructure Security: this is based on a trusted security foundation from Microsoft Windows Azure. All servers, blob storages and databases are secured using multi-factor authentication and cryptographic keys. nkoda follows very strict policies on providing access to specific resources for personnel using short-lived shared access signature (SAS) keys.

17.11.4 Logging and Monitoring: every aspect of the System, including APIs, Functions & Processes, Transactions/Data and VM Health, will be fully tracked and logged. All of the logged data can then be analysed by automated alerts and monitored manually via different types of dashboards.

17.11.5 Backup and Disaster Recovery: auditing all of the relevant server resources and automated backups will be part of nkoda’s weekly back-up routine. nkoda will also undertake regular data restore and disaster recovery exercises to mitigate the risk of data loss and system failures.

18.1 Support Services

The Support Services will consist of:

18.1.1 the provision of information and advice on the use of the System, by e-mail, from members of nkoda’s support/helpdesk team to Licensed Users (Category A Support);

18.1.2 the provision of (a) standard maintenance releases, maintenance upgrades and other routine fixes to the System and (b) information and advice by e-mail, from nkoda to Licensed Users, on any such maintenance releases, maintenance upgrades and other routine fixes to the System released by nkoda at its discretion from time to time (Category B Support);

18.1.3 on the receipt by nkoda of an e-mail support request from any Licensed User or Customer, containing a sufficient description of (a) any System fault, error or bug which does not prevent the Licensed Users and their Customers from using the System to place, process and fulfil hire orders and licensing requests (a Category C Fault) and (b) the circumstances in which the Category C Fault arose:

(i) the remote diagnosis by nkoda of any such Category C Fault; and

(ii) the remote rectification by nkoda of any such Category C Fault using patches/other fixes (Category C Support); and

18.1.4 on the receipt by nkoda of an e-mail support request from any Licensed User or Customer, containing a sufficient description of (a) any System fault, error or bug as a result of which Licensed Users and their Customers cannot use the System to place, process or fulfil hire orders and licensing requests (a Category D Fault) and (b) the circumstances in which the Category D Fault arose:

(i) the remote diagnosis by nkoda of any such Category D Fault; and

(ii) the remote rectification by nkoda of any such Category D Fault using patches/other fixes (Category D Support).

18.1.5 For the avoidance of doubt, the function of the nkoda helpdesk will be to assist Licensed Users and their Customers with any questions or problems related to the functioning of the System, as opposed to any questions or problems relating to the level or scope of the service provided by the Licensed Users to their Customers (which will need to be addressed/resolved by the Licensed Users through direct communication with the relevant Customers).

18.2 Response Periods/Times

18.2.1 For Category C Support: nkoda will use reasonable endeavours to respond to the relevant Licensed User or Customer (a) between 7:00am and 10:30pm GMT, Monday through Friday (excluding the following UK holidays: Christmas Day, Boxing Day, New Year’s Day, Good Friday and Easter Monday) and (b) within 24 hours of receiving the relevant e-mail support request.

18.2.2 For Category D Support: nkoda will use best endeavours to respond to the relevant Licensed User or Customer (a) between 7:00am and 10:30pm GMT, Monday through Friday (excluding the following UK holidays: Christmas Day, Boxing Day, New Year’s Day, Good Friday and Easter Monday) and (b) within 2 hours of receiving the relevant e-mail support request.

18.3 System Availability

18.3.1 The availability of the System, in any Licence Year, will be at least 99%, provided that any reduction in the System availability that occurs due to (a) any Excluded System Fault (as defined in paragraph 4 of this Schedule B) or (b) any circumstances beyond nkoda’s reasonable control, as referred to in clause 16.2, will not be taken into account when measuring or determining any reduced System availability, or other downtime, for the purpose of this paragraph 18.3.

18.4 Exclusions

The Support Services will not include the diagnosis or rectification of any System fault, defect or error resulting from any of the following (an Excluded System Fault):

18.4.1 any use or operation of the System, by any Licensed User or Customer, for any purpose or activity other than the Permitted Purposes, or any other improper or incorrect use or operation of the System by any Licensed User or Customer; 

18.4.2 any actual or attempted repair, rectification, maintenance, adjustment, modification or alteration of the System by any Licensed User or Customer, in each case without nkoda’s prior written consent;

18.4.3 the integration or use (or attempted integration or use) of the System with any hardware, equipment or Licensee Software, by any Licensed User or any Customer, unless such integration has been approved by nkoda in writing and in advance; 

18.4.4 the failure by any Licensed User or Customer to implement any recommendation(s) in respect of, any available upgrade or update addressing, or any other solution or fix for, any System fault previously advised or identified by nkoda; or

18.4.5 any use or operation of the System by (a) any Licensed User in breach of any provision of the System Licence Agreement (b) by any Customer that is not in accordance with the provisions of the EULA or (c) by any company or person that is not a Licensed User or a Customer (or who is not employed or engaged by a Licensed User or Customer, and is not authorised by that Licensed User or Customer or to use the System in the course of such employment or engagement).

nkoda may, on receiving a written request from any Licensed User or Customer, choose to provide support to that Licensed User or Customer, notwithstanding that the relevant fault, defect or error is an Excluded System Fault. However, in such circumstances, nkoda will be entitled to charge an additional fee to the relevant Licensed User or Customer which will be (i) notified to, and approved in writing by, the relevant Licensed User or Customer prior to the provision of the applicable support (ii) charged to the relevant Licensed User or Customer by nkoda monthly in arrears, and (iii) payable by the relevant Licensed User or Customer (together with any VAT due thereon), within 14 days of receiving of nkoda’s invoice, in full and in cleared funds by way of electronic bank/funds transfer to nkoda’s nominated bank account.