BlackCurve Standard Terms and Conditions

This document sets out the standard terms and conditions (“Terms”) upon which BlackCurve provides the Platform and the Services to the Customer (as such terms are defined below).

These Terms were last updated on 07/08/2019.

1. Interpretation

In these Terms:

1.1 the following definitions shall apply:

Additional Services: any additional or ancillary services beyond the standard package offered by BlackCurve to its customers (including without limitation customised integration services, Platform customisations, the development of bespoke Pricing Rules, competitor data packages, consultancy services and enhanced support services) provided by BlackCurve to the Customer from time to time (and whether or not set out in the Proposal or a Statement of Work).

Additional Services Fees: the fees payable by the Customer to BlackCurve for the Additional Services as set out in the Proposal and / or the Statement of Work (or, if not set out there, which shall be charged at BlackCurve’s prevailing rates).

AI Engine: the functionality which allows the Platform to automatically set the Prices of the Products by applying BlackCurve’s algorithms.

Assessment: means: (i) BlackCurve’s initial assessment to understand the Customer’s requirements for the Platform and the Services; and / or (ii) the Customer’s trial of the Platform and the Services.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to access and use the Platform.

BlackCurve: BlackCurve Solutions Limited (company number 10089233) having its registered office at Studio 105 Metal Box Factory, 30 Great Guildford Street, London, England, SE1 0HS.

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

Competitor Data: any pricing information or data related to a competitor of the Customer.

Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, candidates, affairs and / or finances of a Party for the time being confidential to that Party.

Contract: the contract between BlackCurve and the Customer which is made up of the Proposal and these Terms, together with any Statements of Work agreed by the Parties from time to time.

Customer: the customer identified in the Proposal.

Customer Data: means the data inputted or provided by the Customer or the Authorised Users for the purposes of BlackCurve delivering the the Services and facilitating the Customer's use of the Platform and the Services.

Documentation: the documentation made available by BlackCurve from time to time in connection with the Customer’s use of the Platform.

Effective Date: the date of the Proposal or the date of the commencement of the Services (whichever is earlier).

Fees: the Implementation Fees, the Subscription Fees and the Additional Services Fees.

Go-Live Date: the date when the Authorised Users are granted access to the Platform.

Implementation Fees: the implementation fees payable by the Customer to BlackCurve as set out in the Proposal and / or the Statement of Work.

Implementation Services: those Services to commission and set up the Platform ready for access and use by the Customer.

Initial Term: the period starting on the Effective Date and ending after the number of months set out in the Proposal following the Go-Live Date (or, if not set out in the Proposal, ending 12 months following the Go-Live Date).

Intellectual Property Rights: all current and future copyright, rights in computer software, patents, rights to inventions, trade marks, databases rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), rights in designs, topographies, trade and business names, domain names, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

IT System: the IT hardware, software and infrastructure used by the Customer and which is used in connection with, or integrates with, the Platform.

Kick-Off Meeting: the meeting to be held by the Parties to discuss and plan the delivery of the Implementation Services referred to in clause 6.

Licence: the licence granted under clause 7.

Parties: BlackCurve and the Customer (each a “Party”).

Platform: BlackCurve’s proprietary online pricing optimisation platform.

Prices: the prices of the Products.

Pricing Information: means the information, data, analysis, recommendations and other outputs related to the Customer’s Products, pricing decisions (which may include Competitor Data) and use of the Platform and / or the Services.

Pricing Rules: the individual pricing rules for the Products used by the Customer via the Rules Engine or by the Platform via the AI Engine.

Products: the Customer’s products set out in the product inventory within the Platform.

Promotional Purposes: as defined in clause 18.2.

Proposal: the proposal document agreed between BlackCurve and the Customer and which is governed by these Terms.

Renewal Term: the period described in clause 21.1.

Rules Engine: the functionality which allow the Customer to set the Pricing Rules via the Platform.

Services: the services described in clause 4.1.

Software: the online software applications provided by BlackCurve as part of the Platform.

Software Services: those Services to make the Platform available to the Customer on a software as a services (SaaS) basis.

Statement of Work: the statement of work agreed between BlackCurve and the Customer which details Additional Services to be provided by BlackCurve under the statement of work, the timetable for delivery of those Additional Services and the amounts payable for those Additional Services.

Subscription Fees: the subscription fees payable by the Customer to BlackCurve as set out in the Proposal and / or the Statement of Work.

Support Services: the support services set out in Schedule 1.

Supported Browser: the most current supported production release of: (i) Google Chrome; (ii) Mozilla Firefox; (iii) Apple Safari; and (iv) Microsoft Internet Explorer.

Third-Party Software: the third-party software set out in Schedule 2.

Third-Party Terms: the terms applicable to the Third-Party Software set out in Schedule 2.

1.2 references to clauses and schedules are to the clauses of and schedules to these Terms;

1.3  the headings used in these Terms shall not affect the interpretation of these Terms;

1.4  a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns;

1.5  a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

1.6  unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other gender and the neutral;

1.7  a reference to a statute or statutory provision is a reference to it as it is in force from time to time and shall include all subordinate legislation under that statute or statutory provision from time to time;

1.8  a reference to writing or written includes e-mail; and

1.9  if there is any conflict between the documents making up the Contract, the following order of precedence shall apply:

(a) the Statement of Work (if there are any);

(b) the Proposal; and

(c) these Terms.

2.  These Terms

2.1 These Terms, which are made available on BlackCurve’s website, apply to all Services provided by BlackCurve to the Customer. By signing the Proposal and / or the Statement of Work, the Customer is deemed to accept these Terms which shall govern the Services provided under the Proposal and / or the Statement of Work.

2.2 These Terms are current as at the date set out at the start of these Terms. BlackCurve reserves the right to update these Terms from time to time by posting an updated version of these Terms (“Updated Terms”) on BlackCurve’s website or by notifying the Customer in writing of the Updated Terms at least 60 days before they come into force.

2.3  If the Customer does not wish to accept the Updated Terms, the Customer may terminate this Contract by giving BlackCurve at least 30 days’ written notice provided that such notice expires before the Updated Terms come into force and BlackCurve shall refund the Customer the Subscription Fees on a pro-rata basis to the extent they relate to the post-termination period of this Contract.

2.4 If the Customer does not serve notice on BlackCurve to terminate this Contract in accordance with clause 2.3, the Customer shall be deemed to have accepted the Updated Terms, and the Customer’s use of the Platform and the Services shall be subject to the Updated Terms from the date they come into force.

2.5  These Terms will prevail over:

(a) any purchase order, purchase confirmation or other document (including the Customer’s own terms and conditions) put forward by the Customer, and such document shall be deemed to be for administrative purposes only and shall not have any legal effect; and

(b) any non-disclosure agreement signed by the Parties prior to the date of the Proposal or Statement of Work, and such non-disclosure agreement shall be deemed superseded by these Terms.

3. Platform Functionality

3.1  The Platform allows the Customer to:

(a) control the Pricing Rules via the Rules Engine or to authorise the Platform to control the Prices via the AI Engine;

(b) apply changes to the Prices manually or to authorise the Platform to apply changes to the Prices automatically; and

(c) access the Pricing Information to assist the Customer to make decisions on the Prices.

4.  Scope of the Services

4.1 BlackCurve shall provide:

(a) the Implementation Services;

(b) the Software Services;

(c) the Support Services; and

(d) any Additional Services.

4.2  BlackCurve grants the Customer the Licence and shall make the Platform available to the Customer in accordance with the terms of this Contract.

5.  Assessments

5.1  The Customer acknowledges and agrees that:

(a) the Assessment is carried out under, and is subject to, these Terms;

(b) the Customer Data received by BlackCurve during the Assessment shall be within the scope of clause 14; and

(c) the Proposal is, and the Statements of Work may be, based on the information and data provided by the Customer to BlackCurve during the Assessment. If the information or data provided by the Customer to BlackCurve is inaccurate or incomplete, BlackCurve may amend the Proposal, any affected Statements of Work, the timelines for delivery and / or the Fees as BlackCurve deems appropriate.

6.  Statements of Work and Kick-Off Meeting

6.1  Where the Customer requires Additional Services to set up the Platform and / or the Services:

(a) following signature of the Proposal by the Customer, the Parties shall promptly (and within a maximum of 30 days) agree and sign the Statement of Work setting out the detail, timeline, and scope of responsibilities for the Implementation Services (the “Initial Statement of Work”);

(b) The Customer acknowledges and agrees that the Go-Live Date set out in the Proposal and / or the Initial Statement of Work is based on:

(A) the Customer signing the Initial Statement of Work and attending the Kick-Off Meeting within 30 days of the date of the Proposal; and

(B) the Customer carrying out its other obligations in relation to the Implementation Services promptly and efficiently and within the timeframes set out in the Proposal, the Statement of Work and / or otherwise required by BlackCurve,

and if the Customer fails to meet any of the requirements in this clause 6.1, the Go-Live Date set out in the Proposal and / or the Initial Statement of Work shall not be delayed, and the Customer shall be liable to pay BlackCurve the Subscription Fees with effect from the Go-Live Date set out in the Proposal and / or the Initial Statement of Work.

6.2  The Parties may from time to time agree in writing additional Statements of Work for the supply of Additional Services by BlackCurve and each Statement of Work shall be governed by these Terms.

7.  Licence

7.1  Subject to the Customer complying with the terms of this Contract, BlackCurve grants the Customer a non-exclusive, non-transferrable licence, without the right to grant sub-licenses, to permit the Authorised Users to access and use the Platform and the Documentation during the term of this Contract solely for the Customer’s own internal business purposes.

7.2  In relation to the Authorised Users, the Customer undertakes that:

(a) each Authorised User shall keep a secure password for their use of the Platform, and that each Authorised User shall keep their password confidential;

(b) it will ensure no Authorised User’s password is discovered by an unauthorised person;

(c) it shall promptly provide BlackCurve with the names and contact details of each Authorised User upon request;

(d) it shall permit BlackCurve or BlackCurve’s designated auditor to audit the Authorised Users’ use of the Platform to establish the Customer’s compliance with this Contract;

(e) if any of the audits referred to in clause 7.2(d) reveal that any password has been provided to any unauthorised person, then without prejudice to BlackCurve’s other rights and remedies, BlackCurve may:

(i) charge the Customer for the additional usage of the Platform at BlackCurve’s prevailing rates (backdated to the date the unauthorised access first occurred); and / or

(ii) disable such passwords without issuing replacement passwords to the Customer and / or restrict the Customer’s access to the Platform under such passwords (and the Customer shall remain liable to pay BlackCurve the Fees for the full term of this Contract notwithstanding that the Customer’s access to the Platform may be disabled and / or restricted).

7.3  The Customer’s rights to access and use the Platform and the Services shall be limited to the  number of Products set out in the Proposal and / or the Statement of Work. If the actual number of Products in the product inventory within the Platform exceeds the number of Products set out in the Proposal and / or the Statement of Work by more than 25% (twenty five percent), BlackCurve reserves the right to increase the Subscription Fees as BlackCurve (acting reasonably) deems  appropriate.

7.4  The rights granted under this clause 7 are granted to the to the Customer only, and are not granted to any group company of the Customer.

8.  Licence Restrictions

8.1  The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Platform or the Services that is unlawful or may damage or detrimentally affect the performance of the Platform, the Services and / or the reputation of BlackCurve. BlackCurve reserves the right, without liability or prejudice to its other rights against the Customer, to cease provision of the Services and disable the Customer's access to the Platform if it breaches this clause 8.1.

8.2  The Customer shall not (nor attempt to):

(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and / or the Documentation in any form or media or by any means; or

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

(c) use the Platform or the Services for any purpose except for the purposes of this Contract;

(d) access all or any part of the Platform or the Services in order to build a product or service which competes with the Platform and / or the Services;

(e) use the Platform or Services to provide services to third parties;

(f) subject to clause 23.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Services available to any third party except the Authorised Users; or

(g) attempt to obtain, or assist third parties in obtaining, access to the Platform other than in accordance with clause 7.

8.3  The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Services and, in the event of any such unauthorised access or use, shall promptly notify BlackCurve.

9.  Third-Party Software

9.1  The Platform incorporates the Third-Party Software which is governed by the Third-Party Terms set out in Schedule 2. By accessing and using the Platform, the Customer is deemed to have agreed to the Third-Party Terms and the Customer shall fully comply with the Third-Party Terms.

9.2  If any Third-Party Software is permanently or temporarily unavailable, or ceases to be available on terms which BlackCurve deems to be commercially acceptable, BlackCurve may remove that Third-Party Software from the Platform and, without liability to the Customer:

(a) make such modifications to the Platform and / or the Services as BlackCurve determines are needed as a result of the removal of the Third-Party Software; or

(b) where BlackCurve determines that the Third-Party Software is fundamental to the Platform and cannot be easily and cost-effectively replaced, BlackCurve may terminate this Contract by giving the Customer at least 2 Business Days’ notice and BlackCurve shall refund the Customer the Subscription Fees on a pro-rata basis to the extent they relate to the post-termination period of this Contract.

9.3  Where BlackCurve modifies the Platform and / or the Services under clause 9.2(a), the Customer shall enter into such contracts with alternative providers of the Third-Party Software as BlackCurve may reasonably require.

9.4  Nothing in this clause 9 shall relieve the Customer of its obligation to pay BlackCurve the Charges in full in accordance with this Contract.

10.  Customer Obligations

10.1  The Customer shall:

(a) promptly provide BlackCurve with the Customer Data requested by BlackCurve for the Services;

(b) carry out all the Customer’s responsibilities set out in the Proposal, the Statements of Work and as otherwise required under this Contract in a timely and efficient manner;

(c) provide BlackCurve with such co-operation, assistance, information, data and documentation as BlackCurve may reasonably request;

(d) attend all conference calls, meetings and workshops arranged by BlackCurve in relation to the Platform and / or the Services;

(e) provide, for BlackCurve, and its’ officers, employees, consultants, agents, agency workers and subcontractors, in a timely manner and at no charge, access to the Customer’s premises, offices, systems and facilities as reasonably requested by BlackCurve;

(f) comply with all applicable laws and regulations;

(g) ensure that the Authorised Users use the Platform and the Services in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User's breach of this Contract;

(h) obtain and shall maintain all necessary licences, consents, and permissions necessary for BlackCurve, its contractors and agents to perform their obligations under this Contract;

(i) ensure that its network and systems comply with the relevant specifications provided by BlackCurve in order to access and use the Platform; and

(j) be solely responsible for procuring, maintaining and securing its internet browser, and its network connections and telecommunications links from its systems to BlackCurve’s (and BlackCurve’s suppliers’) data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's internet browser, network connections or telecommunications links or caused by the internet.

10.2  Where BlackCurve’s performance of this Contract is prevented or delayed by any act or omission of the Customer, its officers, employees, consultants, agents, agency workers or subcontractors, BlackCurve shall be allowed an equal extension of time to perform its obligations, and the Customer shall pay BlackCurve the Fees on the date(s) they would have become due but for the prevention or delay and the Customer shall pay BlackCurve the Additional Services Fees at BlackCurve’s prevailing standard rates for any Additional Services performed by BlackCurve in dealing with the prevention or reducing the delay.

11.  Go-Live Date Delays

11.1  Where prior to the Go-Live Date set out in the Proposal and / or the Statement of Work, the Customer or its officers, employees, consultants, agents, agency workers or subcontractors cause a delay in the Services:

(a) the Go-Live Date set out in the Proposal and / or the Statement of Work shall be delayed to allow BlackCurve an appropriate extension of time to perform its obligations ahead of the Go-Live Date;

(b) the Customer shall start paying BlackCurve the Subscription Fees with effect from the original Go-Live Date set out in the Proposal and / or the Statement of Work; and

(c) the Customer shall pay BlackCurve the Additional Services Fees at BlackCurve’s prevailing standard rates for any Additional Services performed by BlackCurve in reducing the delay.

11.2  Where prior to the Go-Live Date set out in the Proposal and / or the Statement of Work, BlackCurve or its officers, employees, consultants, agents, agency workers or subcontractors cause a delay in the Services:

(a) BlackCurve shall use reasonable endeavours to notify the Customer of the delay and the expected duration of the delay; and

(b) irrespective of whether BlackCurve has provided the notice under clause 11.2(a), the Go-Live Date set out in the Proposal and / or the Statement of Work shall, without liability to BlackCurve, be delayed to allow BlackCurve an appropriate extension of time to perform its obligations ahead of the Go-Live Date.

12.  The Customer’s Systems

12.1  The Customer acknowledges and agrees that the Platform and the Services are made available to the Customer based on the IT System used by the Customer when BlackCurve prepared the Proposal. If the Customer makes any changes to the IT System (“New IT System”), the Customer:

(a) shall promptly notify BlackCurve and provide BlackCurve with full details of the New IT System;

(b) acknowledges and agrees that the Customer may not be able to access all or part of the Platform or the functionality of the Platform; and

(c) acknowledges and agrees that BlackCurve may charge the Customer the Additional Services Fees at BlackCurve’s prevailing standard rates for any Additional Services performed by BlackCurve to reconfigure the Platform for use with the Customer’s New IT System.

12.2  Where the Customer makes changes to its’ IT System, the Customer acknowledges and agrees that the Customer shall remain liable to pay the Fees to BlackCurve in full in accordance with the terms of this Contract notwithstanding any degradation or unavailability of the Platform caused by the change to the New IT System.

12.3  The Customer warrants and represents that the IT Systems’ use and integration with the Platform will not infringe the Intellectual Property Rights of any third party. The Customer shall indemnify BlackCurve for all claims, costs, damages and expenses (including legal expenses) incurred by BlackCurve as a result of the Customer’s breach of the warranty in this clause 12.3.

13.  Support Services

13.1  BlackCurve will, as part of the Services, provide the Customer with the Support Services set out in Schedule 1.

13.2  BlackCurve reserves the right to:

(a) update and upgrade the Platform from time to time, and the Customer shall be responsible for activating any new functionality within the Platform following an update or upgrade; and

(b) update the list of Supported Browsers from time to time, and the Customer shall be responsible for ensuring it accesses and uses the Platform via a Supported Browser.

14.  Customer Data and Pricing Information

14.1  The Customer shall own the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all the Customer Data.

14.2  The Customer grants BlackCurve a royalty-free, non-exclusive, transferrable, sublicensable, worldwide, irrevocable and perpetual licence to use the Customer Data for the purposes of:

(a) providing the Platform and the Services to the Customer in accordance with the terms of this Contract;

(b) developing insights into purchasing behaviours and the impact of product pricing on purchasing behaviours (“Insights”);

(c) developing BlackCurve’s products and services for the benefit of BlackCurve and BlackCurve’s other clients and customers; and

(d) providing BlackCurve’s products and services, the Customer Data, and the Insights to BlackCurve’s other clients and customers (provided the Customer Data and the Insights are anonymised).

14.3  The Customer warrants and represents that BlackCurve’s use of the Customer Data in accordance with this Contract will not infringe the Intellectual Property Rights or other rights of any third party. The Customer shall indemnify BlackCurve for all claims, costs, dmaages and expenses (including reasonable legal expenses incurred by BlackCurve as a result of the Customer’s breach of the warranty in this clause 14.3.

14.4  In the event of any loss or damage to Customer Data caused by BlackCurve or BlackCurve’s subcontractors, the Customer's sole and exclusive remedy against BlackCurve shall be for BlackCurve to use reasonable endeavours to restore the lost or damaged Customer Data. Where the loss or damage is caused by the Customer, a third party (other than BlackCurve’s subcontractors) or by an event within the scope of clause 23.1, BlackCurve shall have no liability for the loss or damage to the Customer Data and BlackCurve reserves the right to charge the Customer the Additional Services Fees at BlackCurve’s prevailing rates for any Additional Services provided by BlackCurve to assist the Customer to restore the lost or damaged Customer Data.

14.5  BlackCurve shall own all right, title and interest in and to the Pricing Information. BlackCurve grants the Customer a non-exclusive, royalty-free licence to use the Pricing Information for the purposes of receiving and making reasonable use of the Platform and the Services.

15.  Data Protection

15.1  In this clause 15, the terms “data protection legislation” and “personal data” shall have the meanings set out in Schedule 3.

15.2  During the term of this Contract, the Parties will share with each other a limited amount of personal data related to their staff involved with this Contract. Therefore, the Parties shall comply with the data sharing obligations set out in the Schedule to these Terms.

15.3  The Customer shall ensure that the Customer Data does not contain any personal data. If the Customer Data does contain personal data, then (at BlackCurve’s option):

(a)  BlackCurve shall return the Customer Data to the Customer so the Customer can remove all the personal data; or

(b)  BlackCurve shall remove all the personal data from the Customer Data itself and the Customer shall pay BlackCurve the Additional Services Fees at BlackCurve’s prevailing rates for those Additional Services.

15.4  Where BlackCurve requires the Customer to remove the personal data from the Customer Data under clause 15.3(a), the Customer shall promptly remove the personal data from the Customer Data and return the Customer Data (with the personal data removed) to BlackCurve.

15.5  The Customer shall indemnify BlackCurve for all claims, costs, damages and expenses (including reasonable legal expenses) incurred by BlackCurve as a result of any breach of the Data Protection Legislation by BlackCurve as a result of the Customer Data containing personal data.

 

16.  BlackCurve Obligations

16.1  BlackCurve undertakes that:

(a) the Services will be performed substantially in accordance with the Proposal and / or Statement of Work and with reasonable skill and care;

(b) the Platform will perform substantially in accordance with the Documentation;

(c) it has and will maintain all licences, consents, and permissions necessary for the performance of its obligations under this Contract;

(d) it has and will at all times have the ability and capacity to perform all of its obligations under this Contract; and

(e) it will at all times comply with all applicable laws and regulations.

16.2  The undertakings at clauses 16.1(a) and 16.1(b) shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to BlackCurve's instructions or this Contract or by the use of the Platform with a browser other than a Supported Browser. If the Platform or the Services do not conform with the undertakings at clauses 16.1(a) or 16.1(b), BlackCurve will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertakings set out in clauses 16.1(a) and 16.1(b).

16.3  BlackCurve shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

16.4  The Customer acknowledges and agrees that BlackCurve does not warrant or represent that the Platform or the Services (or the information obtained from them) will meet all of the Customer’s requirements. The Customer acknowledges that it is the Customer’s responsibility to ensure that the Platform and the Services (and the information obtained from them) are suitable for the Customer’s business.

16.5  BlackCurve may from time to time make changes and modifications to the Platform with or without notice to the Customer provided that such changes and modifications do not permanently and materially degrade the functionality or performance of the Platform.

16.6  This Contract shall not prevent BlackCurve from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Contract.

16.7  Each Party warrants that it has full capacity and authority, and all necessary licenses, permits and consents to enter into and perform this Contract and that those signing the Proposal and each Statement of Work are duly authorised to bind the Party for whom they sign.

16.8  The undertakings provided in this clause 16 are in lieu of all warranties, rights and remedies provided by law which are hereby excluded to the fullest extent permitted by applicable law.

17.  Charges and payment

17.1  The Customer shall pay BlackCurve the Fees in accordance with the terms of this Contract.

17.2  BlackCurve shall invoice the Customer for:

(a) the Implementation Fees on or following the Effective Date;

(b) the Subscription Fees for:

(i) the Initial Term in advance on the Go-Live Date; and

(ii) each Renewal Term in advance at the start of the Renewal Term; and

(c) the Additional Services Fees at the times set out in the Proposal or the Statement of Work (or, if not set out there, monthly in arrears).

17.3  The Customer shall pay BlackCurve’s invoices within 30 days of the date of the invoice.

17.4  If BlackCurve has not received payment by the due date, and without prejudice to any other rights and remedies it may have, BlackCurve may:

(a) without liability to the Customer, disable the Customer's password, account and access to all or part of the Platform and the Services and BlackCurve shall be under no obligation to reinstate access while the invoice(s) remain unpaid and the Customer shall continue to pay the Fees to BlackCurve in accordance with the terms of this Contract notwithstanding that the Platform and the Services may be unavailable and inaccessible; and / or

(b) charge the Customer interest on the overdue amount at the rate of 4% above HSBC bank’s base rate from time to time.

17.5  All amounts and fees stated or referred to in this Contract shall be payable in pounds sterling and are exclusive of value added tax (which shall be added to BlackCurve’s invoices at the applicable rate).

17.6  BlackCurve may charge the Customer reasonable travel and subsistence expenses incurred by BlackCurve in connection with the Services which the Customer shall reimburse to BlackCurve at cost provided that BlackCurve produces receipts or other proof of payment of the expenses.

17.7  BlackCurve shall be entitled to increase the Fees each year in line with increases to the Retail Prices Index (RPI).

18.  Intellectual Property

18.1  The Customer acknowledges and agrees that BlackCurve and / or its licensors retain all title, rights and interest in and to the Intellectual Property Rights in the Platform and the Services. Except as expressly stated herein, this Contract does not grant the Customer any rights to the Intellectual Property Rights in or to the Platform or the Services.

18.2  The Customer grants BlackCurve a non-exclusive, royalty-free, worldwide, transferrable, sub-licensable, perpetual and irrevocable licence to use the Customer’s name and logo on BlackCurve’s website, in marketing materials and in case studies for the purposes of promoting the Platform and the Services to BlackCurve’s other actual and potential clients and customers (the “Promotional Purposes”).

18.3  BlackCurve shall defend the Customer against any claim that the Platform infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality (“Claims”), and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such Claims, provided that:

(a) BlackCurve is given prompt notice of all such Claims;

(b) the Customer does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of BlackCurve;

(c) the Customer promptly provides reasonable co-operation and assistance to BlackCurve and its professional advisors in the defence and settlement of such Claim; and

(d) BlackCurve is given sole control over, and authority to defend or settle, the Claim.

18.4  In the defence or settlement of any Claim, BlackCurve may procure the right for the Customer to continue using the Platform, replace or modify the Platform so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Contract on 2 Business Days' notice to the Customer without any liability to the Customer and BlackCurve shall refund the Customer the Subscription Fees on a pro-rata basis to the extent they relate to the post-termination period of this Contract.

18.5  In no event shall BlackCurve, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a) a modification of the Platform by anyone other than BlackCurve;

(b) the Customer's use of the Platform in a manner contrary to the instructions given to the Customer by BlackCurve;

(c) the Customer's use of the Platform after notice of the alleged or actual infringement from BlackCurve or any appropriate authority; or

(d) any information, data, documentation, materials or other items provided by the Customer, or created to the Customer’s instructions or specifications.

18.6  The foregoing and clause 18.4 state the Customer's sole and exclusive rights and remedies, and BlackCurve’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

18.7  Nothing in this Contract shall prevent BlackCurve using its skill, expertise, knowledge and know-how to develop and provide products and services to BlackCurve’s other clients and customers, provided that it does not result in the disclosure of the Customer’s Confidential Information.

19.  Confidentiality

19.1  Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Contract.  A Party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving Party;

(b) was in the other Party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving Party, which independent development can be shown by written evidence.

19.2  Subject to clause 19.3, each Party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than for the implementation of this Contract.

19.3  The receiving Party may disclose the other’s Confidential Information:

(a) to its officers, employees, consultants, agents, agency workers and subcontractors who need to receive the Confidential Information for the purposes of this Contract (“Representatives”) provided that the receiving Party ensures its Representatives comply with this clause 19 as though they were the receiving Party; or

(b) to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

19.4  Nothing in this Contract shall prevent BlackCurve referring to the Customer or to the Services provided to the Customer on BlackCurve’s website, in marketing materials or in case studies for Promotional Purposes provided that BlackCurve does not reveal any Confidential Information of the Customer.

19.5  The above provisions of this clause 19 shall survive termination of this Agreement, however arising.

20.  Limitation of Liability

20.1  The Parties agree that:

(a) BlackCurve shall have no liability for any damage caused by errors or omissions in any Customer Data, or by information or instructions provided to BlackCurve by the Customer in connection with the Services;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract; and

(c) the Platform and the Services are provided to the Customer on an "as is" basis and have not been specifically designed for the Customer.

20.2  The Customer acknowledges and agrees that:

(a) the Customer is solely responsible for the Customer’s use of the Pricing Rules, the Rules Engine and the AI Engine;

(b) where the Customer instructs BlackCurve to develop bespoke Pricing Rules for the Customer, the Customer is solely responsible for ensuring the bespoke Pricing Rules developed by BlackCurve meet the Customer’s requirements and comply with the Customer’s instructions before they are used within the Platform;

(c) the nature of the Platform and the Services means that it is necessary to “market test” the prices of the Products at different levels to identify how purchasers respond to changes in the pricing;

(d) BlackCurve does not warrant or guarantee that any particular results will be obtained from the Customer’s use of the Platform or the Services. The Customer accepts the financial risk of using the Platform and the Services and assumes sole responsibility for the results obtained from the Customer’s use of the Platform and the Services, and for all conclusions drawn from such use;

(e) the Customer is solely responsible for the pricing decisions made by the Customer in respect of the Products; and

(f) BlackCurve does not warrant that the Competitor Data (or any Pricing Information based on the Competitor Data) is accurate or complete, 

and, therefore, BlackCurve shall have no liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, in respect of any of those matters.

20.3  Nothing in this Contract limits or excludes the liability of BlackCurve for:

(a) death or personal injury caused by BlackCurve's negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which cannot be lawfully limited or excluded.

20.4  Subject to clause 20.3:

(a) BlackCurve shall not be liable whether in contract (including under any indemnity), tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any:

(i) loss of profits;

(ii) loss of business;

(iii) damage to goodwill or reputation;

(iv) loss or corruption of data or information;

(v) pure economic loss, or for any special; or

(vi) indirect, consequential or special loss, costs, damages, charges or expenses,

in each case however arising under or in connection with this Contract and for the avoidance of doubt clause 20.4(a)(i) to clause 20.4(a)(v) (inclusive) shall apply whether the loss or damage is direct, indirect, consequential, special or otherwise; and

(b)  BlackCurve’s total aggregate liability in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the performance or contemplated performance of this Contract shall be limited to the greater of:

(i) £10,000 (ten thousand pounds); or

(ii) the total Fees paid by the Customer to BlackCurve under this Contract during the 12 months immediately preceding the date on which the claim arose.

21.  Term and Termination

21.1  This Contract shall commence on the Effective Date and, unless otherwise terminated in accordance with its terms, continue for the Initial Term and, thereafter, this Contract shall automatically renew for successive periods of 12  months (each a Renewal Term), unless either Party notifies the other Party of termination, in writing, at least 90 days before the end of the Initial Term or any Renewal Term, in which case this Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Term.

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

(a) the other Party commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or

(c) the other Party has a receiver or an administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other Party becomes subject to an administration order or enters into any voluntary arrangement with its creditors.

21.3  Without limiting any other rights or remedies available to it, BlackCurve may terminate this Contract on at least 7 days written notice to the Customer if the Customer fails to pay any amount due to BlackCurve under this Contract and remains in default not less than 7 days after being notified in writing to make such payment.

21.4  On termination of this Contract for any reason:

(a) all amounts payable to BlackCurve by the Customer shall become immediately due and owing;

(b) except for the perpetual licences granted under clauses 14.2 and 18.2:

(i) all licences granted under this Contract shall immediately terminate and the Customer shall immediately cease all use of the Platform, the Services and the Documentation;

(ii) each Party shall promptly return and make no further use of the property, documentation and other items belonging to the other Party;

(iii) each Party shall promptly return the other Party’s Confidential Information;

(c) BlackCurve shall, provided that the Customer submits the request to BlackCurve within 30 days of the expiry or termination of this Contract, provide the Customer with a copy of the Customer Data and the Pricing Information;

(d) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination shall not be affected or prejudiced; and

(e) all clauses which expressly or by implication survive the expiry or termination of this Contract shall continue in full force and effect including clauses 12.3, 14, 15, 18.2, 19, 20, 21.4, 22 and 23 and the Schedule.

22.  Notices

22.1  Any notice given to a Party under or in connection with this Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or

(b) sent by email to the email address set out in the Proposal or the Statement of Work.

22.2  Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.

(c) if sent by email, at 9.00 am on the next Business Day after transmission provided a “failed transmission” notification (or equivalent) is not received by the sender.

22.3  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23.  General

23.1  BlackCurve shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BlackCurve or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of BlackCurve or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

23.2  Subject to clause 2, no variation of this Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

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

23.4  If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.

23.5  If any provision or part-provision of this Contract is deemed deleted under clause 23.4 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

23.6  This Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

23.7  Each Party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

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

23.9  Nothing in this Contract is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other Party.

23.10  This Contract does not confer any rights on any third party whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23.11  This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

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

SCHEDULE 1

SUPPORT SERVICES AND SERVICE LEVELS

1.  Incidents must be reported by the Customer at http://blackcurve.zendesk.com.

2.  Incidents reported, must include the following information:

(i) Contact name and telephone number.

(ii) Incident description including.

(iii) Expected behaviour of the Platform.

(iv) Actual behaviour of the Platform.

(v) Action prior to the Incident.

(vi) Action after experiencing the Incident.

(vii) Number of Users experiencing the Incident.

(viii) Error messages displayed (if applicable).

3.  Incidents reported in the following situations are outside the scope of the Service:

(i) Malicious intent.

(ii) Inappropriate use of the Platform.

(iii) Problems caused by faults in third party components.

4.  Incidents will be classified in one of the following priorities:

(a) Priority A.

(i) System cannot run.

(ii) Data corruption problems that cannot be contained and could lead to a significant loss of data and no workaround is feasible.

(b) Priority B.

(i) Important operational job is stopped.

(ii) Time critical job is at risk.

(iii) Important Platform component is unusable.

(iv) Data corruption problems that cannot be contained.

(c) Priority C.

(i) Important job is at risk or urgent for other specified reason.

(ii) Intermittent failure.

(d) Priority D

(i) Intermittent Incident causing inconvenience.

(ii) A problem which has been found which has no current impact on the Customer, or for which a locally identified cure or circumvention is available.

(iii) It is passed on for information only to ensure registration of the problem and clearance as appropriate.

5.     The targeted response time for incident resolution is as follows:

(a) Priority A – 1 Business Day.

(b) Priority B – 2 Business Days.

(c) Priority C – 6 Business Days.

(d) Priority D - 10 Business Days.

6.   The targeted incident resolution time does not include the period of time that BlackCurve is waiting for an update from the Customer.

7.   In all cases, incidents raised on the online help desk will be acknowledged within half a Business Day.

8.  In the event of the incident being acknowledged as of sufficient severity that it is estimated the problem will take longer to resolve than the targeted response time, BlackCurve will advise the estimated time to resolution.

9.  At any stage during the life of an incident, enquiries may be made on the current state of an incident.

10.  If the Customer finds that the Incident is more serious than originally agreed, the incident may be escalated to the appropriate priority by agreement.

11.  If an incident is not resolved within the target timescale, it is escalated to the next highest priority unless an extension is agreed with the Customer.

12.  BlackCurve offices closes from Christmas Day to New Years Day inclusive. During this period a restricted support service will be available. During this time, incidents will be logged, and any Priority A issues will be progressed immediately. All other issues will be progressed from 2nd January or next Business Day.

13.  Notwithstanding that BlackCurve shall use its reasonable endeavours to provide to the Customer uninterrupted access to the Platform. The Customer hereby acknowledges that BlackCurve does not make any representation or Warranties to that effect and accepts that access to the Platform is/are provided on an “as is” and “as available” basis.

14.  BlackCurve will inform the Customer when the service will be unavailable and agree a down time. Due to the nature of the Internet, some service unavailability may be outside of BlackCurve’s control.


SCHEDULE 2

THIRD PARTY SOFTWARE

None.


SCHEDULE 3

DATA PROTECTION

1.  DEFINITIONS

The definitions set out below shall apply to this Schedule (in addition to the definitions set out in clause 0 of these Terms).

Agreed Purposes: the purpose of providing (in the case of BlackCurve) and receiving (in the case of the Customer) the Platform and the Services under this Contract.

Controller, processor, data subject, personal data, personal data breach, processing and “appropriate technical and organisational measures”: shall have the meanings as set out in the Data Protection Legislation.

Data Discloser: the Party that discloses Shared Personal Data to the other Party.

Data Protection Legislation: the Data Protection Act 2018 or any other UK legislation related to the processing of personal data from time to time and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.

Permitted Recipients: the Parties to this Contract, and the officers, employees, consultants, agents and subcontractors of each of them, and any third parties engaged to perform obligations in connection with this Contract.

Shared Personal Data: has the meaning given in paragraph 1.3 of this Schedule.

Supervisory Authority: the relevant supervisory authority in the territories where the Parties to this Contract are established.

2.  DATA PROTECTION

2.1  Compliance. Each Party must ensure compliance with applicable Data Protection Legislation at all times during the term of this Contract.

2.2  Registrations. Each Party shall ensure that it has such valid registrations and has paid such fees as are required by its national Supervising Authority which covers the intended data sharing pursuant to this Contract. 

2.3  Shared Personal Data. Each Party (referred to in this clause as the Data Discloser”) will share its’ staff names and contact details with the other Party during the term of this Contract (“Shared Personal Data”).

2.4  Particular obligations relating to data sharing. Each Party shall:

(a) ensure that it processes the Shared Personal Data fairly and lawfully;

(b) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients and the processing of the Shared Personal Data for the Agreed Purposes;

(c) process the Shared Personal Data only for the Agreed Purposes;

(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

(e) ensure that all Permitted Recipients are subject to appropriate written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality);

(f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and

(g) not transfer any personal data received from the Data Discloser outside the European Economic Area without the Data Discloser’s prior written consent and provided that the transfer complies with the Data Protection Legislation.

2.5  Mutual assistance. Each Party shall assist the other Party in complying with all applicable requirements of the Data Protection Legislation in respect of the Shared Personal Data. In particular, and in respect of the Shared Personal Data, each Party shall:

(a) promptly inform the other Party about the receipt of any data subject access request;

(b) provide the other Party with reasonable assistance in complying with any data subject access request;

(c) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other Party wherever reasonably practicable; and

(d) assist the other Party, at the reasonable cost of the other Party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators.